SCREWS ET AL. v.

UNITED STATES (05/07/45)

[1]

SUPREME COURT OF THE UNITED STATES

No. 42
[2]

1945.SCT.40609
<http://www.versuslaw.com>;
[3] 325 U.S. 91, 65 S. Ct. 1031,
89 L. Ed. 1495

decided: May 7, 1945.

[4]

SCREWS ET AL.
v.
[5]
UNITED STATES

CERTIORARI TO THE
CIRCUIT COURT OF
[6] APPEALS FOR THE FIFTH
CIRCUIT.

Mr. James F. Kemp, with

whom Messrs. Clint W.
Hager and Robert B. Short
[7]
were on the brief, for
petitioners.

Solicitor General Fahy, with

whom Assistant Attorney
General Tom C. Clark,
[8] Messrs. Robert S. Erdahl and
Irving S. Shapiro were on the
brief, for the United States.

Messrs. William H. Hastie,

Thurgood Marshall and Leon
A. Ransom filed a brief on
behalf of the National
[9] Association for the
Advancement of Colored
People, as amicus curiae,
urging affirmance.

Stone, Roberts, Black, Reed,

Frankfurter, Douglas,
[10]
Murphy, Jackson, Rutledge
 Author: Douglas
[11]

MR. JUSTICE DOUGLAS

announced the judgment of
the Court and delivered the
following opinion, in which
[12]
the CHIEF JUSTICE, MR.
JUSTICE BLACK and MR.
JUSTICE REED concur.

This case involves a shocking

and revolting episode in law
enforcement. Petitioner
Screws was sheriff of Baker
County, Georgia. He enlisted
the assistance of petitioner
Jones, a policeman, and
petitioner Kelley, a special
deputy, in arresting Robert
Hall, a citizen of the United
States and of Georgia. The
arrest was made late at night
at Hall's home on a warrant
charging Hall with theft of a
tire. Hall, a young negro
about thirty years of age, was
handcuffed and taken by car
to the court house. As Hall
alighted from the car at the
court-house square, the three
petitioners began beating him
with their fists and with a
solid-bar blackjack about
[13] eight inches long and
weighing two pounds. They
claimed Hall had reached for
a gun and had used insulting
language as he alighted from
the car. But after Hall, still
handcuffed, had been
knocked to the ground they
continued to beat him from
fifteen to thirty minutes until
he was unconscious. Hall was
then dragged feet first through
the court-house yard into the
jail and thrown upon the floor
dying. An ambulance was
called and Hall was removed
to a hospital where he died
within the hour and without
regaining consciousness.
There was evidence that
Screws held a grudge against
Hall and had threatened to
 "get" him.

An indictment was returned

against petitioners -- one
count charging a violation of
§ 20 of the Criminal Code, 18
U. S. C. § 52 and another
[14]
charging a conspiracy to
violate § 20 contrary to § 37
of the Criminal Code, 18 U.
S. C. § 88. Sec. 20 provides:

"Whoever, under color of any

law, statute, ordinance,
regulation, or custom,
willfully subjects, or causes
to be subjected, any
inhabitant of any State,
Territory, or District to the
deprivation of any rights,
privileges, or immunities
secured or protected by the
Constitution and laws of the
United States, or to different
punishments, pains, or
penalties, on account of such
inhabitant being an alien, or
by reason of his color, or
race, than are prescribed for
the punishment of citizens,
shall be fined not more than
$1,000, or imprisoned not
more than one year, or both."
The indictment charged that
petitioners, acting under color
of the laws of Georgia,
[15] "willfully" caused Hall to be
deprived of "rights,
privileges, or immunities
secured or protected" to him
by the Fourteenth
Amendment -- the right not
to be deprived of life without
due process of law; the right
to be tried, upon the charge
on which he was arrested, by
due process of law and if
found guilty to be punished in
accordance with the laws of
Georgia; that is to say that
petitioners "unlawfully and
wrongfully did assault, strike
and beat the said Robert Hall
about the head with human
fists and a blackjack causing
injuries" to Hall "which were
the proximate and immediate
 cause of his death." A like
charge was made in the
conspiracy count.

The case was tried to a

jury.*fn1 The court charged
the jury that due process of
law gave one charged with a
[16] crime the right to be tried by
a jury and sentenced by a
court. On the question of
intent it charged that

". . . if these defendants,

without its being necessary to
make the arrest effectual or
necessary to their own
personal protection, beat this
man, assaulted him or killed
him while he was under
arrest, then they would be
acting illegally under color of
[17]
law, as stated by this statute,
and would be depriving the
prisoner of certain
constitutional rights
guaranteed to him by the
Constitution of the United
States and consented to by the
State of Georgia."

The jury returned a verdict of

guilty and a fine and
imprisonment on each count
was imposed. The Circuit
Court of Appeals affirmed the
judgment of conviction, one
judge dissenting. 140 F.2d
[18] 662. The case is here on a
petition for a writ of certiorari
which we granted because of
the importance in the
administration of the criminal
laws of the questions
presented.

I
[19]

We are met at the outset with

the claim that § 20 is
unconstitutional, insofar as it
makes criminal acts in
violation of the due process
clause of the Fourteenth
 Amendment. The argument
runs as follows: It is true that
this Act as construed in
United States v. Classic, 313
U.S. 299, 328, was upheld in
its application to certain
ballot box frauds committed
by state officials. But in that
case the constitutional rights
protected were the rights to
vote specifically guaranteed
by Art. I, § 2 and § 4 of the
Constitution. Here there is no
ascertainable standard of
guilt. There have been
conflicting views in the Court
as to the proper construction
of the due process clause. The
majority have quite
consistently construed it in
broad general terms. Thus it
was stated in Twining v. New
Jersey, 211 U.S. 78, 101, that
due process requires that "no
change in ancient procedure
can be made which disregards
those fundamental principles,
to be ascertained from time to
time by judicial action, which
have relation to process of
law and protect the citizen in
his private right, and guard
[20]
him against the arbitrary
action of government." In
Snyder v. Massachusetts, 291
U.S. 97, 105, it was said that
due process prevents state
action which "offends some
principle of justice so rooted
in the traditions and
conscience of our people as
to be ranked as fundamental."
The same standard was
expressed in Palko v.
Connecticut, 302 U.S. 319,
325, in terms of a "scheme of
ordered liberty." And the
same idea was recently
phrased as follows: "The
phrase formulates a concept
less rigid and more fluid than
those envisaged in other
specific and particular
provisions of the Bill of
Rights. Its application is less
a matter of rule. Asserted
denial is to be tested by an
appraisal of the totality of
facts in a given case. That
which may, in one setting,
constitute a denial of
fundamental fairness,
shocking to the universal
sense of justice, may, in other
circumstances, and in the
light of other considerations,
fall short of such denial."
Betts v. Brady, 316 U.S. 455,
462.

It is said that the Act must be

read as if it contained those
broad and fluid definitions of
due process and that if it is so
read it provides no
ascertainable standard of
guilt. It is pointed out that in
United States v. Cohen
Grocery Co., 255 U.S. 81, 89,
an Act of Congress was
struck down, the enforcement
of which would have been
"the exact equivalent of an
effort to carry out a statute
which in terms merely
penalized and punished all
acts detrimental to the public
interest when unjust and
unreasonable in the
estimation of the court and
jury." In that case the act
declared criminal was the
making of "any unjust or
unreasonable rate or charge in
handling or dealing in or with
any necessaries." 255 U.S. p.
86. The Act contained no
definition of an "unjust or
unreasonable rate" nor did it
refer to any source where the
measure of "unjust or
unreasonable" could be
ascertained. In the instant
case the decisions of the
courts are, to be sure, a
source of reference for
ascertaining the specific
content of the concept of due
process. But even so the Act
would incorporate by
reference a large body of
changing and uncertain law.
That law is not always
reducible to specific rules, is
expressible only in general
terms, and turns many times
on the facts of a particular
 case. Accordingly, it is argued
that such a body of legal
principles lacks the basic
specificity necessary for
criminal statutes under our
system of government.
Congress did not define what
it desired to punish but
referred the citizen to a
comprehensive law library in
order to ascertain what acts
were prohibited. To enforce
such a statute would be like
sanctioning the practice of
Caligula who "published the
law, but it was written in a
very small hand, and posted
up in a corner, so that no one
could make a copy of it."
Suetonius, Lives of the
Twelve Caesars, p. 278. The
serious character of that
challenge to the
constitutionality of the Act is
emphasized if the customary
standard of guilt for statutory
crimes is taken. As we shall
see, specific intent is at times
required. Holmes, The
Common Law, pp. 66 et seq.
But the general rule was
stated in Ellis v. United
[21] States, 206 U.S. 246, 257, as
follows: "If a man
intentionally adopts certain
conduct in certain
circumstances known to him,
and that conduct is forbidden
by the law under those
circumstances, he
intentionally breaks the law in
the only sense in which the
law ever considers intent."
And see Horning v. District
of Page 97} Columbia, 254
U.S. 135, 137; Nash v. United
States, 229 U.S. 373, 377.
Under that test a local law
enforcement officer violates §
20 and commits a federal
offense for which he can be
sent to the penitentiary if he
does an act which some court
later holds deprives a person
of due process of law. And he
is a criminal though his
motive was pure and though
his purpose was unrelated to
the disregard of any
constitutional guarantee. The
treacherous ground on which
state officials -- police,
prosecutors, legislators, and
judges -- would walk is
indicated by the character and
closeness of decisions of this
Court interpreting the due
process clause of the
Fourteenth Amendment. A
confession obtained by too
long questioning (Ashcraft v.
Tennessee, 322 U.S. 143); the
enforcement of an ordinance
requiring a license for the
distribution of religious
literature (Murdock v.
Pennsylvania, 319 U.S. 105);
the denial of the assistance of
counsel in certain types of
cases (Cf. Powell v. Alabama,
287 U.S. 45 with Betts v.
Brady, supra); the
enforcement of certain types
of anti-picketing statutes
(Thornhill v. Alabama, 310
U.S. 88); the enforcement of
state price control laws
(Olsen v. Nebraska, 313 U.S.
236); the requirement that
public school children salute
the flag (Board of Education
v. Barnette, 319 U.S. 624) --
these are illustrative of the
kind of state action *fn2 which
might or might not be caught
in the broad reaches of § 20
dependent on the prevailing
view of the Court as
constituted when the case
arose. Those who enforced
local law today might not
know for many months (and
meanwhile could not find out)
whether what they did
deprived some one of due
process of law. The
enforcement of a criminal
statute so construed would
indeed cast law enforcement
agencies loose at their own
risk on a vast uncharted sea.

If such a construction is not

necessary, it should be
avoided. This Court has
consistently favored that
interpretation of legislation
 which supports its
constitutionality. Ashwander
v. Tennessee Valley
Authority, 297 U.S. 288, 348;
Labor Board v. Jones &
[22]
Laughlin Steel Corp., 301
U.S. 1, 30; Anniston Mfg. Co.
v. Davis, 301 U.S. 337, 351-
352. That reason is impelling
here so that if at all possible §
20 may be allowed to serve
its great purpose -- the
protection of the individual in
his civil liberties.

Sec. 20 was enacted to

enforce the Fourteenth
Amendment. *fn3 It
derives *fn4 from § 2 of the
Civil Rights Act of April 9,
1866. 14 Stat. 27.*fn5 Senator
Trumbull, chairman of the
Senate Judiciary Committee
which reported the bill, stated
that its purpose was "to
protect all persons in the
United States in their civil
rights, and furnish the means
of their vindication." Cong.
Globe, 39th Cong., 1st Sess.,
p. 211. In origin it was an
antidiscrimination measure
(as its language indicated),
framed to protect Negroes in
their newly won rights. See
Flack, The Adoption of the
Fourteenth Amendment
(1908), p. 21. It was amended
by § 17 of the Act of May 31,
1870, 16 Stat. 144,*fn6 and
made applicable to "any
inhabitant of any State or
Territory." *fn7 The
prohibition against the
[23] "deprivation of any rights,
privileges, or immunities,
secured or protected by the
Constitution and laws of the
United States" was introduced
by the revisers in 1874. R. S.
§ 5510. Those words were
taken over from § 1 of the
Act of April 20, 1871, 17
Stat. 13 (the so-called Ku-
Klux Act) which provided
civil suits for redress of such
wrongs. *fn8 See Cong. Rec., d
 Cong., 1st Sess., p. 828. The
1874 revision was applicable
to any person who under
color of law, etc., "subjects,
or causes to be subjected" any
inhabitant to the deprivation
of any rights, etc. The
requirement for a "willful"
violation was introduced by
the draftsmen of the Criminal
Code of 1909. Act of March
4, 1909, 35 Stat. 1092. And
we are told "willfully" was
added to § 20 in order to
make the section "less
severe." 43 Cong. Rec., 60th
Cong., 2d Sess., p. 3599.

We hesitate to say that when

Congress sought to enforce
the Fourteenth
Amendment *fn9 in this
fashion it did a vain thing.
We hesitate to conclude that
for 80 years this effort of
Congress, renewed several
times, to protect the important
rights of the individual
guaranteed by the Fourteenth
Amendment has been an idle
gesture. Yet if the Act falls
by reason of vagueness so far
as due process of law is
concerned, there would seem
to be a similar lack of
specificity when the
privileges and immunities
[24] clause (Madden v. Kentucky,
309 U.S. 83) and the equal
protection clause (Smith v.
Texas, 311 U.S. 128; Hill v.
Texas, 316 U.S. 400) of the
Fourteenth Amendment are
involved. Only if no
construction can save the Act
from this claim of
unconstitutionality are we
willing to reach that result.
We do not reach it, for we are
of the view that if § 20 is
confined more narrowly than
the lower courts confined it, it
can be preserved as one of
the sanctions to the great
rights which the Fourteenth
Amendment was designed to
secure. II
 We recently pointed out that
"willful" is a word "of many
meanings, its construction
often being influenced by its
context." Spies v. United
States, 317 U.S. 492, 497. At
times, as the Court held in
United States v. Murdock,
290 U.S. 389, 394, the word
denotes an act which is
intentional rather than
accidental. And see United
States v. Illinois Central R.
Co., 303 U.S. 239. But "when
used in a criminal statute it
generally means an act done
with a bad purpose." Id., p.
394. And see Felton v. United
States, 96 U.S. 699; Potter v.
[25] United States, 155 U.S. 438;
Spurr v. United States, 174
U.S. 728; Hargrove v. United
States, 67 F.2d 820. In that
event something more is
required than the doing of the
act proscribed by the statute.
Cf. United States v. Balint,
258 U.S. 250. An evil motive
to accomplish that which the
statute condemns becomes a
constituent element of the
crime. Spurr v. United States,
supra, p. 734; United States v.
Murdock, supra, p. 395. And
that issue must be submitted
to the jury under appropriate
instructions. United States v.
Ragen, 314 U.S. 513, 524.

An analysis of the cases in

which "willfully" has been
held to connote more than an
act which is voluntary or
intentional would not prove
helpful as each turns on its
own peculiar facts. Those
cases, however, make clear
that if we construe "willfully"
in § 20 as connoting a
purpose to deprive a person
of a specific constitutional
right, we would introduce no
innovation. The Court,
indeed, has recognized that
the requirement of a specific
intent to do a prohibited act
may avoid those
 consequences to the accused
which may otherwise render a
vague or indefinite statute
invalid. The constitutional
vice in such a statute is the
essential injustice to the
accused of placing him on
trial for an offense, the nature
of which the statute does not
define and hence of which it
gives no warning. See United
States v. Cohen Grocery Co.,
supra. But where the
punishment imposed is only
for an act knowingly done
with the purpose of doing that
which the statute prohibits,
the accused cannot be said to
suffer from lack of warning
or knowledge that the act
which he does is a violation
of law. The requirement that
the act must be willful or
purposeful may not render
certain, for all purposes, a
statutory definition of the
crime which is in some
respects uncertain. But it does
relieve the statute of the
objection that it punishes
without warning an offense of
which the accused was
unaware. That was pointed
out by Mr. Justice Brandeis
speaking for the Court in
Omaechevarria v. Idaho, 246
U.S. 343. An Idaho statute
made it a misdemeanor to
graze sheep "upon any range
usually occupied by any cattle
grower." The argument was
[26] that the statute was void for
indefiniteness because it
failed to provide for the
ascertainment of boundaries
of a "range" or for
determining what length of
time was necessary to make a
prior occupation a "usual"
one. The Court ruled that
"any danger to sheepmen
which might otherwise arise
from indefiniteness, is
removed by § 6314 of
Revised Codes, which
provides that: 'In every crime
or public offense there must
exist a union, or joint
operation, of act and intent,
or criminal negligence.'" Id.,
p. 348. A similar ruling was
made in Hygrade Provision
Co. v. Sherman, 266 U.S.
497. The charge was that a
criminal statute which
regulated the sale of "kosher"
meat or products "sanctioned
by the orthodox Hebrew
religious requirements" was
unconstitutional for want of
any ascertainable standard of
guilt. The Court speaking
through Mr. Justice
Sutherland stated, ". . . since
the statutes require a specific
intent to defraud in order to
encounter their prohibitions,
the hazard of prosecution
which appellants fear loses
whatever substantial
foundation it might have in
the absence of such a
requirement." 266 U.S. pp.
502-503. In United States v.
Ragen, supra, we took that
course in a prosecution for
willful evasion of a federal
income tax where it was
alleged that the defendant had
deducted more than
"reasonable" allowances for
salaries. By construing the
statute to require proof of bad
faith we avoided the serious
question which the rule of
United States v. Cohen
Grocery Co., supra, might
have presented. We think a
like course is appropriate
here.

Moreover, the history of § 20

affords some support for that
narrower construction. As we
have seen, the word
"willfully" was not added to
the Act until 1909. Prior to
that time it may be that
Congress intended that he
who deprived a person of any
right protected by the
Constitution should be liable
without more. That was the
pattern of criminal legislation
which has been sustained
without any charge or proof
of scienter. Shevlin-Carpenter
 Co. v. Minnesota, 218 U.S.
57; United States v. Balint,
supra. And the present Act in
its original form would have
been susceptible of the same
interpretation apart from the
equal protection clause of the
Fourteenth Amendment,
where "purposeful
discriminatory" action must
[27]
be shown. Snowden v.
Hughes, 321 U.S. 1, 8-9. But
as we have seen, the word
"willfully" was added to
make the section "less
severe." We think the
inference is permissible that
its severity was to be lessened
by making it applicable only
where the requisite bad
purpose was present, thus
requiring specific intent not
only where discrimination is
claimed but in other situations
as well. We repeat that the
presence of a bad purpose or
evil intent alone may not be
sufficient. We do say that a
requirement of a specific
intent to deprive a person of a
federal right made definite by
decision or other rule of law
saves the Act from any
charge of unconstitutionality
on the grounds of vagueness.

Once the section is given that

construction, we think that the
claim that the section lacks an
ascertainable standard of guilt
must fail. The constitutional
requirement that a criminal
statute be definite serves a
high function. It gives a
person acting with reference
to the statute fair warning that
his conduct is within its
prohibition. This requirement
is met when a statute
prohibits only "willful" acts in
the sense we have explained.
One who does act with such
specific intent is aware that
what he does is precisely that
which the statute forbids. He
is under no necessity of
guessing whether the statute
[28] applies to him (see Connally
 v. General Construction Co.,
269 U.S. 385) for he either
knows or acts in reckless
disregard of its prohibition of
the deprivation of a defined
constitutional or other federal
right. See Gorin v. United
States, 312 U.S. 19, 27-28.
Nor is such an act beyond the
understanding and
comprehension of juries
summoned to pass on them.
The Act would then not
become a trap for law
enforcement agencies acting
in good faith. "A mind intent
upon willful evasion is
inconsistent with surprised
innocence." United States v.
Ragen, supra, p. 524.

It is said, however, that this

construction of the Act will
not save it from the infirmity
of vagueness since neither a
law enforcement official nor
a trial judge can know with
sufficient definiteness the
range of rights that are
constitutional. But that
criticism is wide of the mark.
For the specific intent
required by the Act is an
intent to deprive a person of a
right which has been made
specific either by the express
terms of the Constitution or
laws of the United States or
by decisions interpreting
them. Take the case of a local
officer who persists in
enforcing a type of ordinance
which the Court has held
invalid as violative of the
guarantees of free speech or
freedom of worship. Or a
local official continues to
select juries in a manner
which flies in the teeth of
decisions of the Court. If
those acts are done willfully,
how can the officer possibly
claim that he had no fair
warning that his acts were
[29]
prohibited by the statute? He
violates the statute not merely
because he has a bad purpose
but because he acts in
defiance of announced rules
of law. He who defies a
decision interpreting the
Constitution knows precisely
what he is doing. If sane, he
hardly may be heard to say
that he knew not what he did.
Of course, willful conduct
cannot make definite that
which is undefined. But
willful violators of
constitutional requirements,
which have been defined,
certainly are in no position to
say that they had no adequate
advance notice that they
would be visited with
punishment. When they act
willfully in the sense in
which we use the word, they
act in open defiance or in
reckless disregard of a
constitutional requirement
which has been made specific
and definite. When they are
convicted for so acting, they
are not punished for violating
an unknowable something.

The Act so construed has a

narrower range in all its
applications than if it were
interpreted in the manner
urged by the government. But
the only other alternative, if
we are to avoid grave
constitutional questions, is to
construe it as applicable only
to those acts which are clearly
marked by the specific
provisions of the Constitution
as deprivations of
constitutional rights,
privileges, or immunities, and
which are knowingly done
within the rule of Ellis v.
United States, supra. But as
we have said, that course
would mean that all protection
for violations of due process
of law would drop out of the
Act. We take the course
which makes it possible to
preserve the entire Act and
save all parts of it from
constitutional challenge. If
Congress desires to give the
Act wider scope, it may find
 ways of doing so. Moreover,
here as in Apex Hosiery Co.
v. Leader, 310 U.S. 469, we
are dealing with a situation
where the interpretation of
the Act which we adopt does
[30]
not preclude any state from
punishing any act made
criminal by its own laws.
Indeed, the narrow
construction which we have
adopted more nearly
preserves the traditional
balance between the States
and the national government
in law enforcement than that
which is urged upon us.
assault. But in view of our
construction of the word
"willfully" the jury should
have been further instructed
that it was not sufficient that
petitioners had a generally
bad purpose. To convict it
was necessary for them to
find that petitioners had the
purpose to deprive the
prisoner of a constitutional
right, e. g. the right to be
tried by a court rather than by
ordeal. And in determining
whether that requisite bad
purpose was present the jury
would be entitled to consider
all the attendant
circumstances -- the malice of
petitioners, the weapons used
in the assault, its character
and duration, the provocation,
if any, and the like.

It is true that no exception

was taken to the trial court's
charge. Normally we would
under those circumstances not
take note of the error. See
Johnson v. United States, 318
U.S. 189, 200. But there are
exceptions to that rule. United
States v. Atkinson, 297 U.S.
157, 160; Clyatt v. United
States, 197 U.S. 207, 221-
222. And where the error is
so fundamental as not to
submit to the jury the
[31]
essential ingredients of the
only offense on which the
conviction could rest, we
 think it is necessary to take
note of it on our own motion.
Even those guilty of the most
heinous offenses are entitled
to a fair trial. Whatever the
degree of guilt, those charged
with a federal crime are
entitled to be tried by the
standards of guilt which
Congress has prescribed.

III
[32]

It is said, however, that

petitioners did not act "under
color of any law" within the
meaning of § 20 of the
Criminal Code. We disagree.
We are of the view that
petitioners acted under
"color" of law in making the
arrest of Robert Hall and in
assaulting him. They were
[33] officers of the law who made
the arrest. By their own
admissions they assaulted
Hall in order to protect
themselves and to keep their
prisoner from escaping. It was
their duty under Georgia law
to make the arrest effective.
Hence, their conduct comes
within the statute.

Some of the arguments which

have been advanced in
support of the contrary
conclusion suggest that the
question under § 20 is
whether Congress has made it
a federal offense for a state
officer to violate the law of
his State. But there is no
warrant for treating the
question in state law terms.
The problem is not whether
state law has been violated
but whether an inhabitant of a
State has been deprived of a
federal right by one who acts
under "color of any law." He
who acts under "color" of law
may be a federal officer or a
state officer. He may act
[34] under "color" of federal law
or of state law. The statute
 does not come into play
merely because the federal
law or the state law under
which the officer purports to
act is violated. It is applicable
when and only when someone
is deprived of a federal right
by that action. The fact that it
is also a violation of state law
does not make it any the less
a federal offense punishable
as such. Nor does its
punishment by federal
authority encroach on state
authority or relieve the state
from its responsibility for
punishing state offenses. *fn10

We agree that when this

statute is applied to the action
of state officials, it should be
construed so as to respect the
proper balance between the
States and the federal
government in law
enforcement. Violation of
local law does not necessarily
mean that federal rights have
been invaded. The fact that a
prisoner is assaulted, injured,
or even murdered by state
officials does not necessarily
mean that he is deprived of
any right protected or secured
by the Constitution or laws of
the United States. Cf. Logan
v. United States, 144 U.S.
263, dealing with assaults by
federal officials. The
Fourteenth Amendment did
not alter the basic relations
between the States and the
national government. United
States v. Harris, 106 U.S.
629; In re Kemmler, 136 U.S.
436, 448. Our national
government is one of
delegated powers alone.
Under our federal system the
administration of criminal
justice rests with the States
except as Congress, acting
within the scope of those
[35] delegated powers, has created
offenses against the United
States. Jerome v. United
States, 318 U.S. 101, 105. As
stated in United States v.
Cruikshank, 92 U.S. 542,
553-554, "It is no more the
duty or within the power of
the United States to punish
for a conspiracy to falsely
imprison or murder within a
State, than it would be to
punish for false imprisonment
or murder itself." And see
United States v. Fox, 95 U.S.
670, 672. It is only state
action of a "particular
character" that is prohibited
by the Fourteenth
Amendment and against
which the Amendment
authorizes Congress to afford
relief. Civil Rights Cases, 109
U.S. 3, 11, 13. Thus Congress
in § 20 of the Criminal Code
did not undertake to make all
torts of state officials federal
crimes. It brought within § 20
only specified acts done
"under color" of law and then
only those acts which
deprived a person of some
right secured by the
Constitution or laws of the
United States.

This section was before us in

United States v. Classic, 313
U.S. 299, 326, where we said:
"Misuse of power, possessed
by virtue of state law and
made possible only because
the wrongdoer is clothed with
the authority of state law, is
action taken 'under color of'
state law." In that case state
election officials were
charged with failure to count
the votes as cast, alteration of
the ballots, and false
certification of the number of
votes cast for the respective
candidates. 313 U.S. pp. 308-
309. We stated that those acts
of the defendants "were
committed in the course of
their performance of duties
under the Louisiana statute
requiring them to count the
ballots, to record the result of
the count, and to certify the
result of the election." Id., pp.
325-326. In the present case,
 325-326. In the present case,
[36]
as we have said, the
defendants were officers of
the law who had made an
arrest and who by their own
admissions made the assault
in order to protect themselves
and to keep the prisoner from
escaping, i. e., to make the
arrest effective. That was a
duty they had under Georgia
law. United States v. Classic
is, therefore, indistinguishable
from this case so far as
"under color of" state law is
concerned. In each officers of
the State were performing
official duties; in each the
power which they were
authorized to exercise was
misused. We cannot draw a
distinction between them
unless we are to say that § 20
is not applicable to police
officers. But the broad sweep
of its language leaves no
room for such an exception.

It is said that we should

abandon the holding of the
Classic case. It is suggested
that the present problem was
not clearly in focus in that
case and that its holding was
ill-advised. A reading of the
opinion makes plain that the
question was squarely
involved and squarely met. It
followed the rule announced
in Ex parte Virginia, 100 U.S.
339, 346, that a state judge
who in violation of state law
discriminated against negroes
in the selection of juries
violated the Act of March 1,
1875, 18 Stat. 336. It is true
that that statute did not
contain the words under
"color" of law. But the Court
in deciding what was state
action within the meaning of
the Fourteenth Amendment
held that it was immaterial
that the state officer exceeded
the limits of his authority. ". .
. as he acts in the name and
for the State, and is clothed
with the State's power, his act
 is that of the State. This must
be so, or the constitutional
prohibition has no meaning.
Then the State has clothed
one of its agents with power
to annul or to evade it." 100
U.S. at p. 347. And see
Virginia v. Rives, U.S. 313,
321. The Classic case
recognized, without dissent,
that the contrary view would
defeat the great purpose
which § 20 was designed to
serve. Reference is made to
[37] statements*fn11 of Senator
Trumbull in his discussion of
§ 2 of the Civil Rights Act of
1866, 14 Stat. 27, and to
statements of Senator
Sherman concerning the 1870
Act *fn12 as supporting the
conclusion that "under color
of any law" was designed to
include only action taken by
officials pursuant to state law.
But those statements in their
context are inconclusive on
the precise problem involved
in the Classic case and in the
present case. We are not
dealing here with a case
where an officer not
authorized to act nevertheless
takes action. Here the state
officers were authorized to
make an arrest and to take
such steps as were necessary
to make the arrest effective.
They acted without authority
only in the sense that they
used excessive force in
making the arrest effective. It
is clear that under "color" of
law means under "pretense"
of law. Thus acts of officers
in the ambit of their personal
pursuits are plainly excluded.
Acts of officers who
undertake to perform their
official duties are included
whether they hew to the line
of their authority or overstep
it. If, as suggested, the statute
was designed to embrace only
action which the State in fact
authorized, the words "under
color of any law" were hardly
apt words to express the idea.
 Nor are the decisions under §
33 of the Judicial Code, 28 U.
S. C. § 76, in point. That
section gives the right of
removal to a federal court of
any criminal prosecution
begun in a state court against
a revenue officer of the
United States "on account of
any act done under color of
his office or of any such
(revenue) law." The cases
under it recognize that it is an
"exceptional" procedure
which wrests from state
courts the power to try
offenses against their own
laws. Maryland v. Soper (No.
1), 270 U.S. 9, 29, 35;
Colorado v. Symes, 286 U.S.
510, 518. Thus the
requirements of the showing
necessary for removal are
strict. See Maryland v. Soper
(No. 2), 270 U.S. 36, 42,
saying that acts "necessary to
[38] make the enforcement
effective" are done under
"color" of law. Hence those
cases do not supply an
authoritative guide to the
problems under § 20 which
seeks to afford protection
against officers who possess
authority to act and who
exercise their powers in such
a way as to deprive a person
of rights secured to him by
the Constitution or laws of
the United States. It is one
thing to deprive state courts
of their authority to enforce
their own laws. It is quite
another to emasculate an Act
of Congress designed to
secure individuals their
constitutional rights by finely
spun distinctions concerning
the precise scope of the
authority of officers of the
law. Cf. Yick Wo v. Hopkins,
118 U.S. 356.

But beyond that is the

problem of stare decisis. The
construction given § 20 in the
 Classic case formulated a rule
of law which has become the
basis of federal enforcement
in this important field. The
rule adopted in that case was
formulated after mature
consideration. It should be
good for more than one day
only. We do not have here a
situation comparable to
Mahnich v. Southern S. S.
Co., 321 U.S. 96, where we
overruled a decision
demonstrated to be a sport in
the law and inconsistent with
what preceded and what
followed. The Classic case
was not the product of hasty
action or inadvertence. It was
not out of line with the cases
[39] which preceded. It was
designed to fashion the
governing rule of law in this
important field. We are not
dealing with constitutional
interpretations which
throughout the history of the
Court have wisely remained
flexible and subject to
frequent re-examination. The
meaning which the Classic
case gave to the phrase
"under color of any law"
involved only a construction
of the statute. Hence if it
states a rule undesirable in its
consequences, Congress can
change it. We add only to the
instability and uncertainty of
the law if we revise the
meaning of § 20 to meet the
exigencies of each case
coming before us.

Since there must be a new

[40] trial, the judgment below is

Reversed.
[41]

Disposition
[42]

140 F.2d 662, reversed.

[43]

MR. JUSTICE RUTLEDGE,

[44] concurring in the result.

For the compelling reason

stated at the end of this
opinion I concur in reversing
the judgment and remanding
the cause for further
proceedings. But for that
reason, my views would
[45]
require that my vote be cast
to affirm the judgment, for
the reasons stated by MR.
JUSTICE MURPHY and
others I feel forced, in the
peculiar situation, to state.

The case comes here

established in fact as a gross
abuse of authority by state
officers. Entrusted with the
state's power and using it,
without a warrant or with one
of only doubtful legality*fn1
they invaded a citizen's home,
arrested him for alleged theft
of a tire, forcibly took him in
handcuffs to the courthouse
yard, and there beat him to
death. Previously they had
[46] threatened to kill him,
fortified themselves at a near-
by bar, and resisted the
bartender's importunities not
to carry out the arrest. Upon
this and other evidence which
overwhelmingly supports
(140 F.2d at 665) the verdict,
together with instructions
adequately covering an
officer's right to use force, the
jury found the petitioners
guilty.

I
[47]

The verdict has shaped their

position here. Their
contention hardly disputes the
facts on which it rests. *fn2
They do not come therefore
as faithful state officers,
innocent of crime.
[48] Justification has been
foreclosed. Accordingly, their
argument now admits the
 offense, but insists it was
against the state alone, not the
nation. So they have made
their case in this Court. *fn3

In effect, the position urges it

is murder they have done, *fn4
not deprivation of
constitutional right. Strange
as the argument is the reason.
It comes to this, that abuse of
state power creates immunity
to federal power. Because
what they did violated the
state's laws, the nation cannot
reach their conduct.*fn5 It
may deprive the citizen of his
[49] liberty and his life. But
whatever state officers may
do in abuse of their official
capacity can give this
Government and its courts no
concern. This, though the
prime object of the
Fourteenth Amendment and §
20 was to secure these
fundamental rights against
wrongful denial by exercise
of the power of the states.

The defense is not pretty. Nor

is it valid. By a long course of
decision from Ex parte
Virginia, 100 U.S. 339, to
United States v. Classic, 313
U.S. 299, it has been
rejected.*fn6 The ground
should not need ploughing
again. It was cleared long ago
and thoroughly. It has been
kept clear, until the ancient
doubt, laid in the beginning,
was resurrected in the last
[50] stage of this case. The
evidence has nullified any
pretense that petitioners acted
as individuals, about their
personal though nefarious
business. They used the
power of official place in all
that was done. The verdict
has foreclosed semblance of
any claim that only private
matters, not touching official
functions, were involved. Yet
neither was the state's power,
 they say.

There is no third category.

The Amendment and the
legislation were not aimed at
rightful state action. Abuse of
state power was the target.
Limits were put to state
authority, and states were
forbidden to pass them, by
whatever agency. *fn7 It is too
late now, if there were better
reason than exists for doing
so, to question that in these
matters abuse binds the state
and is its act, when done by
one to whom it has given
power to make the abuse
[51] effective to achieve the
forbidden ends. Vague ideas
of dual federalism,*fn8 of
ultra vires doctrine imported
from private agency, *fn9 and
of want of finality in official
action, *fn10 do not nullify
what four years of civil strife
secured and eighty years have
verified. For it was abuse of
basic civil and political rights,
by states and their officials,
that the Amendment and the
enforcing legislation were
adopted to uproot.

The danger was not merely

legislative or judicial. Nor
was it threatened only from
the state's highest officials. It
was abuse by whatever
agency the state might invest
with its power capable of
inflicting the deprivation. In
all its flux, time makes some
[52]
things axiomatic. One has
been that state officials who
violate their oaths of office
and flout the fundamental law
are answerable to it when
their misconduct brings upon
them the penalty it authorizes
and Congress has provided.

There could be no clearer

violation of the Amendment
or the statute. No act could be
 more final or complete, to
denude the victim of rights
secured by the Amendment's
very terms. Those rights so
destroyed cannot be restored.
Nor could the part played by
the state's power in causing
their destruction be lessened,
though other organs were
now to repudiate what was
done. The state's law might
thus be vindicated. If so, the
vindication could only
sustain, it could not detract
[53] from the federal power. Nor
could it restore what the
federal power shielded.
Neither acquittal nor
conviction, though affirmed
by the state's highest court,
could resurrect what the
wrongful use of state power
has annihilated. There was in
this case abuse of state
power, which for the
Amendment's great purposes
was state action, final in the
last degree, depriving the
victim of his liberty and his
life without due process of
law.

If the issues made by the

parties themselves were
allowed to govern, there
would be no need to say
more. At various stages
petitioners have sought to
show that they used no more
force than was necessary, that
there was no state action, and
[54] that the evidence was not
sufficient to sustain the
verdict and the judgment.
These issues, in various
formulations,*fn11 have
comprehended their case. All
have been resolved against
them without error. This
should end the matter. II

But other and most important

issues have been injected and
made decisive to reverse the
judgment. Petitioners have
not denied that they acted
"willfully" within the
 meaning of § 20 or that they
intended to do the acts which
took their victim's liberty and
life. In the trial court they
claimed justification. But they
were unable to prove it. The
verdict, on overwhelming
evidence, has concluded
against them their denial of
bad purpose and reckless
disregard of rights. This is
necessarily implied in the
finding that excessive force
[55]
was used. No complaint was
made of the charge in any of
these respects and no request
for additional charges
concerning them was offered.
Nor, in the application for
certiorari or the briefs, have
they raised questions of the
requisite criminal intent or of
unconstitutional vagueness in
the statute's definition of the
crime. However, these issues
have been brought forward,
so far as the record discloses,
first by the dissenting opinion
in the Court of Appeals, then
by inquiry at the argument
and in the disposition here.

The story would be too long,

to trace in more than outline
the history of § 20 and
companion provisions, in
particular § 19,*fn12 with
which it must be considered
on any suggestion of fatal
ambiguity. But this history
[56] cannot be ignored, unless we
would risk throwing
overboard what the nation's
greatest internal conflict
created and eight decades
have confirmed, in protection
of individual rights against
impairment by the states.

Sections 19 and 20 are twin

sections in all respects that
concern any question of
vagueness in defining the
crimes. There are important
differences. Section 19 strikes
at conspiracies, § 20 at
substantive offenses. The
 former protects "citizens," the
latter "inhabitants." There are,
however, no differences in
the basic rights guarded. Each
[57]
protects in a different way the
rights and privileges secured
to individuals by the
Constitution. If one falls for
vagueness in pointing to
these, the other also must fall
for the same reason. If one
stands, so must both. It is not
one statute therefore which
we sustain or nullify. It is
two.

The sections have stood for

nearly eighty years. Nor has
this been without attack for
ambiguity. Together the two
sections have repelled it. In
1915, one of this Court's
greatest judges, speaking for
it, summarily disposed of the
suggestion that § 19 is
invalid: "It is not open to
question that this statute is
constitutional . . . . [It] dealt
with Federal rights and with
all Federal rights, and
protected them in the lump . .
." United States v. Mosley,
[58] 238 U.S. 383, 386, 387. And
in United States v. Classic,
313 U.S. 299, the Court with
equal vigor reaffirmed the
validity of both sections,
against dissenting assault for
fatal ambiguity in relation to
the constitutional rights then
in question. These more
recent pronouncements but
reaffirmed earlier and
repeated ones. The history
should not require retelling.
But old and established
freedoms vanish when history
is forgotten.

Section 20 originated in the

Civil Rights Act of 1866 (14
Stat. 27), § 19 in the
Enforcement Act of 1870 (16
Stat. 141, § 6). Their great
original purpose was to strike
at discrimination, particularly
[59] against Negroes, the one
 securing civil, the other
political rights. But they were
not drawn so narrowly. From
the beginning § 19 protected
all "citizens," § 20
"inhabitants."

At first § 20 secured only

rights enumerated in the Civil
Rights Act. The first ten years
brought it, through
broadening changes, to
substantially its present form.
Only the word "willfully" has
been added since then, a
change of no materiality, for
the statute implied it
beforehand.*fn13 35 Stat.
1092. The most important
change of the first decade
replaced the specific
enumeration of the Civil
Rights Act with the present
broad language covering "the
deprivation of any rights,
privileges, or immunities,
secured or protected by the
Constitution and laws of the
United States." R. S. § 5510.
This inclusive designation
brought § 20 into conformity
[60] with § 19's original coverage
of "any right or privilege
secured to him by the
Constitution or laws of the
United States." Since then,
under these generic
designations, the two have
been literally identical in the
scope of the rights they
secure. The slight difference
in wording cannot be one of
substance. *fn14 Throughout a
long and varied course of
application the sections have
remained unimpaired on the
score of vagueness in the
crimes they denounce. From
1874 to today they have
repelled all attacks proposed
to invalidate them. None has
succeeded. If time and
uniform decision can give
stability to statutes, these
have acquired it.

Section 20 has not been much

 used, in direct application,
until recently. There were
however a number of early
decisions.*fn15 Of late the
section has been applied more
frequently, in considerable
variety of situation, against
varied and vigorous
attack. *fn16 In United States
v. Classic, 313 U.S. at 321, as
has been stated, this Court
gave it clear-cut sanction.
The opinion expressly
repudiated any idea that the
section, or § 19, is vitiated by
ambiguity. Moreover, this
was done in terms which
leave no room to say that the
decision was not focused
upon that question. *fn17 True,
application to Fourteenth
Amendment rights was
reserved because the question
was raised for the first time in
[61] the Government's brief filed
here. 313 U.S. at 329. But the
statute was sustained in
application to a vast range of
rights secured by the
Constitution, apart from the
reserved segment, as the
opinion's language and the
single reservation itself attest.
The ruling, thus broad, could
not have been inadvertent.
For it was repeated
concerning both sections,
broadly, forcefully, and upon
citation of long-established
authority. And this was done
in response to a vigorous
dissent which made the most
of the point of
vagueness.*fn18 The point was
flatly, and deliberately,
rejected. The Court could not
have been blinded by other
issues to the import of this
one.

The Classic decision thus

cannot be put aside in this
case. Nor can it be
demonstrated that the rights
secured by the Fourteenth
Amendment are more
numerous or more dubious
 than the aggregate
encompassed by other
constitutional provisions.
Certainly "the equal
protection of the laws,"
guaranteed by the
Amendment, is not more
vague and indefinite than
many rights protected by
other commands. *fn19 The
same thing is true of "the
privileges or immunities of
citizens of the United States."
The Fifth Amendment
contains a due process clause
as broad in its terms
restricting national power as
the Fourteenth is of state
power.*fn20 If § 20 (with §
19) is valid in general
coverage of other
constitutional rights, it cannot
be void in the less sweeping
application to Fourteenth
[62] Amendment rights. If it is
valid to assure the rights
"plainly and directly" secured
by other provisions, it is
equally valid to protect those
"plainly and directly" secured
by the Fourteenth
Amendment, including the
expressly guaranteed rights
not to be deprived of life,
liberty or property without
due process of law. If in fact
there could be any difference
among the various rights
protected, in view of the
history it would be that the
section applies more clearly
to Fourteenth Amendment
rights than to others. Its
phrases "are all phrases of
large generalities. But they
are not generalities of
unillumined vagueness; they
are generalities circumscribed
by history and appropriate to
the largeness of the problems
of government with which
they were concerned."
Malinski v. New York, 324
U.S. 401, concurring opinion,
p. 413.

Historically, the section's

function and purpose have
 been to secure rights given by
the Amendment. From the
Amendment's adoption until
1874, it was Fourteenth
Amendment legislation.
Surely when in that year the
section was expanded to
include other rights these
were not dropped out. By
giving the citizen additional
security in the exercise of his
voting and other political
[63] rights, which was the
section's effect, unless the
Classic case falls, Congress
did not take from him the
protection it previously
afforded (wholly apart from
the prohibition of different
penalties) *fn21 against
deprivation of such rights on
account of race, color or
previous condition of
servitude, or repeal the prior
safeguard of civil rights.

To strike from the statute the

rights secured by the
Fourteenth Amendment, but
at the same time to leave
within its coverage the vast
area bounded by other
constitutional provisions,
would contradict both reason
and history. No logic but one
which nullifies the historic
foundations of the
Amendment and the section
[64] could support such an
emasculation. There should
be no judicial hack work
cutting out some of the great
rights the Amendment
secures but leaving in others.
There can be none excising
all protected by the
Amendment, but leaving
every other given by the
Constitution intact under the
statute's aegis.

All that has been said of § 20

applies with equal force to §
19. It had an earlier more
litigious history, firmly
establishing its validity.*fn22
It also has received recent
[65] application, *fn23 without
question for ambiguity except
in the Classic case, which
nevertheless gave it equal
sanction with its substantive
counterpart.

Separately, and often together

in application, §§ 19 and 20
have been woven into our
fundamental and statutory
law. They have place among
our more permanent legal
achievements. They have
safeguarded many rights and
privileges apart from political
ones. Among those
buttressed, either by direct
application or through the
general conspiracy statute, §
37 (18 U. S. C. § 88), *fn24 are
the rights to a fair trial,
including freedom from sham
trials; to be free from arrest
and detention by methods
constitutionally forbidden and
[66] from extortion of property by
such methods; from extortion
of confessions; from mob
action incited or shared by
state officers; from failure to
furnish police protection on
proper occasion and demand;
from interference with the
free exercise of religion,
freedom of the press, freedom
of speech and assembly;*fn25
and the necessary import of
the decisions is that the right
to be free from deprivation of
life itself, without due process
of law, that is, through abuse
of state power by state
officials, is as fully protected
as other rights so secured.

So much experience cannot

be swept aside, or its teaching
annulled, without
overthrowing a great, and a
firmly established,
constitutional tradition. Nor
has the feared welter of
uncertainty arisen. Defendants
have attacked the sections, or
their application, often and
 strenuously. Seldom has
complaint been made that
they are too vague and
uncertain. Objections have
centered principally about
"state action," including
"color of law" and failure by
inaction to discharge official
duty, cf. Catlette v. United
[67] States, 132 F.2d 902, and
about the strength of federal
power to reach particular
abuses.*fn26 More rarely they
have touched other matters,
such as the limiting effect of
official privilege*fn27 and, in
occasional instances, mens
rea.*fn28 In all this wealth of
attack accused officials have
little used the shield of
ambiguity. The omission, like
the Court's rejection in the
Classic case, cannot have
been inadvertent. There are
valid reasons for it, apart from
the old teaching that the
matter has been foreclosed.

One is that the generality of

the section's terms simply has
not worked out to be a hazard
of unconstitutional, or even
serious, proportions. It has
not proved a source of
practical difficulty. In no
other way can be explained
[68]
the paucity of the objection's
appearance in the wealth of
others made. If experience is
the life of the law, as has
been said, this has been true
preeminently in the
application of §§ 19 and 20.

Moreover, statutory
specificity has two purposes,
to give due notice that an act
has been made criminal
before it is done and to
inform one accused of the
nature of the offense charged,
so that he may adequately
prepare and make his defense.
More than this certainly the
Constitution does not require.
Cf. Amend. VI. All difficulty
 on the latter score vanishes,
under § 20, with the
indictment's particularization
of the rights infringed and the
acts infringing them. If it is
not sufficient in either
respect, in these as in other
cases the motion to quash or
one for a bill of particulars is
at the defendant's disposal.
The decided cases
demonstrate that accused
persons have had little or no
difficulty to ascertain the
rights they have been charged
[69] with transgressing or the acts
of transgression. *fn29 So it
was with the defendants in
this case. They were not
puzzled to know for what
they were indicted, as their
proof and their defense upon
the law conclusively show.
They simply misconceived
that the victim had no federal
rights and that what they had
done was not a crime within
the federal power to
penalize. *fn30 That kind of
error relieves no one from
penalty. In the other aspect of
specificity, two answers, apart
from experience, suffice. One
is that § 20, and § 19, are no
more general and vague,
Fourteenth Amendment rights
included, than other criminal
statutes commonly enforced
against this objection. The
Sherman Act is the most
obvious illustration. *fn31

Furthermore, the argument of

vagueness, to warn men of
their conduct, ignores the
nature of the criminal act
itself and the notice
necessarily given from this.
Section 20 strikes only at
abuse of official functions by
state officers. It does not
reach out for crimes done by
men in general. Not murder
per se, but murder by state
[70]
officers in the course of
official conduct and done
with the aid of state power, is
 outlawed. These facts,
inherent in the crime, give all
the warning constitutionally
required. For one, so situated,
who goes so far in
misconduct can have no
excuse of innocence or
ignorance.

Generally state officials know

something of the individual's
basic legal rights. If they do
not, they should, for they
assume that duty when they
assume their office. Ignorance
of the law is no excuse for
men in general. It is less an
excuse for men whose special
duty is to apply it, and
therefore to know and
observe it. If their knowledge
is not comprehensive, state
officials know or should
know when they pass the
limits of their authority, so far
at any rate that their action
exceeds honest error of
judgment and amounts to
abuse of their office and its
function. When they enter
such a domain in dealing with
the citizen's rights, they
should do so at their peril,
whether that be created by
[71] state or federal law. For their
sworn oath and their first
duty are to uphold the
Constitution, then only the
law of the state which too is
bound by the charter. Since
the statute, as I think,
condemns only something
more than error of judgment,
made in honest effort at once
to apply and to follow the
law, cf. United States v.
Murdock, 290 U.S. 389,
officials who violate it must
act in intentional or reckless
disregard of individual rights
and cannot be ignorant that
they do great wrong.*fn32
This being true, they must be
taken to act at peril of
incurring the penalty placed
upon such conduct by the
federal law, as they do of that
the state imposes.
 What has been said supplies
all the case requires to be
decided on the question of
criminal intent. If the criminal
act is limited, as I think it
must be and the statute
intends, to infraction of
constitutional rights,
including rights secured by
the Fourteenth Amendment,
[72]
by conduct which amounts to
abuse of one's official place
or reckless disregard of duty,
no undue hazard or burden
can be placed on state
officials honestly seeking to
perform the rightful functions
of their office. Others are not
entitled to greater protection.

But, it is said, a penumbra of

rights may be involved,
which none can know until
decision has been made and
infraction may occur before it
is had. It seems doubtful this
could be true in any case
involving the abuse of official
function which the statute
requires and, if it could, that
one guilty of such an abuse
[73]
should have immunity for that
reason. Furthermore, the
doubtful character of the right
infringed could give reason at
the most to invalidate the
particular charge, not for
outlawing the statute or
narrowly restricting its
application in advance of
compelling occasion.

For there is a body of well-

established, clear-cut
fundamental rights, including
many secured by the
Fourteenth Amendment, to all
of which the sections may
and do apply, without specific
enumeration and without
creating hazards of
uncertainty for conduct or
defense. Others will enter that
category. So far, at the least
[74]
when they have done so, the
 sections should stand without
question of their validity.
Beyond this, the character of
the act proscribed and the
intent it necessarily implies
would seem to afford would-
be violators all of notice the
law requires, that they act at
peril of the penalty it places
on their misconduct.

We have in this case no

instance of mere error in
judgment, made in good faith.
It would be time enough to
reverse and remand a
conviction, obtained without
instructions along these lines,
if such a case should arise.
Actually the substance of
such instruction was given in
the wholly adequate charge
concerning the officer's right
to use force, though not to
[75]
excess. When, as here, a state
official abuses his place
consciously or grossly in
abnegation of its rightful
obligation, and thereby
tramples underfoot the
established constitutional
rights of men or citizens, his
conviction should stand when
he has had the fair trial and
full defense the petitioners
have been given in this case.

III
[76]

Two implicit but highly

important considerations must
be noticed more definitely.
One is the fear grounded in
concern for possible
maladjustment of federal-
state relations if this and like
convictions are sustained.
Enough has been said to show
that the fear is not well
grounded. The same fear was
expressed, by some in
exaggerated and highly
emotional terms, when § 2 of
the Civil Rights Act, the
antecedent of § 20, was under
[77] debate in Congress.*fn33 The
[77]
history of the legislation's
enforcement gives it no
support. The fear was not
realized in later experience.
Eighty years should be
enough to remove any
remaining vestige. The
volume of prosecutions and
convictions has been small, in
view of the importance of the
subject matter and the length
of time the statutes have been
in force. There are reasons for
this, apart from self-restraint
of federal prosecuting
officials.

One lies in the character of

the criminal act and the intent
which must be proved. A
strong case must be made to
show abuse of official
function, and therefore to
secure indictment or
conviction. Trial must be "by
an impartial jury of the State
and the district wherein the
crime shall have been
committed." Const., Amend.
VI; cf. Art. III, § 2. For all
practical purposes this means
within the state of which the
accused is an officer. Citizens
of the state have not been,
and will not be, ready to
indict or convict their local
officers on groundless charges
or in doubtful cases. The
sections can be applied
effectively only when twelve
of them concur in a verdict
which accords with the
prosecuting official's belief
that the accused has violated
another's fundamental rights.
A federal official therefore
faces both a delicate and a
[78] difficult task when he
undertakes to charge and try a
state officer under the terms
of §§ 19 and 20. The restraint
which has been shown is as
much enforced by these
limitations as it has been
voluntary. These are the
reasons why prosecution has
not been frequent, has been
brought only in cases of gross
 abuse, and therefore has
produced no grave or
substantial problem of
interference by federal
authority in state affairs. But
if the problem in this phase of
the case were more serious
than it has been or is likely to
be, the result legally could
not be to give state officials
immunity from the
obligations and liabilities the
Amendment and its
supporting legislation have
imposed. For the verdict of
the struggle which brought
about adoption of the
Amendment was to the
contrary.

Lying beneath all the surface

arguments is a deeper
implication, which
comprehends them. It goes to
federal power. It is that
Congress could not in so
many words denounce as a
federal crime the intentional
and wrongful taking of an
individual's life or liberty by a
state official acting in abuse
of his official function and
applying to the deed all the
power of his office. This is
[79] the ultimate purport of the
notions that state action is not
involved and that the crime is
against the state alone, not the
nation. It is reflected also in
the idea that the statute can
protect the victim in his many
procedural rights
encompassed in the right to a
fair trial before
condemnation, but cannot
protect him in the right which
comprehends all others, the
right to life itself.

Suffice it to say that if these

ideas did not pass from the
American scene once and for
all, as I think they did, upon
adoption of the Amendment
without more, they have long
since done so. Violation of
state law there may be. But
 from this no immunity to
federal authority can arise
where any part of the
Constitution has made it
supreme. To the Constitution
[80] state officials and the states
themselves owe first
obligation. The federal power
lacks no strength to reach
their malfeasance in office
when it infringes
constitutional rights. If that is
a great power, it is one
generated by the Constitution
and the Amendments, to
which the states have
assented and their officials
owe prime allegiance.*fn34

The right not to be deprived

of life or liberty by a state
officer who takes it by abuse
of his office and its power is
such a right. To secure these
[81] rights is not beyond federal
power. This §§ 19 and 20
have done, in a manner
history long since has
validated.

Accordingly, I would affirm

[82] the judgment.

My convictions are as I have

stated them. Were it possible
for me to adhere to them in
my vote, and for the Court at
the same time to dispose of
the cause, I would act
accordingly. The Court,
however, is divided in
opinion. If each member
accords his vote to his belief,
the case cannot have
disposition. Stalemate should
not prevail for any reason,
however compelling, in a
criminal cause or, if
avoidable, in any other. My
views concerning appropriate
disposition are more nearly in
[83] accord with those stated by
MR. JUSTICE DOUGLAS,
in which three other members
of the Court concur, than they
are with the views of my
 dissenting brethren who favor
outright reversal.
Accordingly, in order that
disposition may be made of
this case, my vote has been
cast to reverse the decision of
the Court of Appeals and
remand the cause to the
District Court for further
proceedings in accordance
with the disposition required
by the opinion of MR.
JUSTICE DOUGLAS.

MR. JUSTICE MURPHY,

[84] dissenting.

I dissent. Robert Hall, a

Negro citizen, has been
deprived not only of the right
to be tried by a court rather
than by ordeal. He has been
deprived of the right to life
itself. That right belonged to
him not because he was a
Negro or a member of any
particular race or creed. That
right was his because he was
an American citizen, because
he was a human being. As
such, he was entitled to all the
respect and fair treatment that
befits the dignity of man, a
dignity that is recognized and
guaranteed by the
Constitution. Yet not even the
[85] semblance of due process has
been accorded him. He has
been cruelly and unjustifiably
beaten to death by local
police officers acting under
color of authority derived
from the state. It is difficult to
believe that such an obvious
and necessary right is
indefinitely guaranteed by the
Constitution or is foreign to
the knowledge of local police
officers so as to cast any
reasonable doubt on the
conviction under § 20 of the
Criminal Code of the
perpetrators of this "shocking
and revolting episode in law
enforcement."
 The Constitution and § 20
must be read together
inasmuch as § 20 refers in
part to certain provisions of
the Constitution. Section 20
punishes anyone, acting under
color of any law, who
willfully deprives any person
of any right, privilege or
immunity secured or
protected by the Constitution
or laws of the United States.
The pertinent part of the
Constitution in this instance
is § 1 of the Fourteenth
Amendment, which firmly
[86]
and unmistakably provides
that no state shall deprive any
person of life without due
process of law. Translated in
light of this specific provision
of the Fourteenth
Amendment, § 20 thus
punishes anyone, acting under
color of state law, who
willfully deprives any person
of life without due process of
law. Such is the clear
statutory provision upon
which this conviction must
stand or fall.

A grave constitutional issue,

however, is said to lurk in the
alleged indefiniteness of the
crime outlawed by § 20. The
rights, privileges and
immunities secured or
protected by the Constitution
or laws of the United States
are claimed to be so uncertain
and flexible, dependent upon
changeable legal concepts, as
to leave a state official
confused and ignorant as to
what actions of his might run
afoul of the law. The statute,
it is concluded, must be set
aside for vagueness. It is
axiomatic, of course, that a
criminal statute must give a
[87]
clear and unmistakable
warning as to the acts which
will subject one to criminal
punishment. And courts are
without power to supply that
which Congress has left
vague. But this salutary
 principle does not mean that
if a statute is vague as to
certain criminal acts but
definite as to others the entire
statute must fall. Nor does it
mean that in the first case
involving the statute to come
before us we must delineate
all the prohibited acts that are
obscure and all those that are
explicit.

Thus it is idle to speculate on

other situations that might
involve § 20 which are not
now before us. We are
unconcerned here with state
officials who have coerced a
confession from a prisoner,
denied counsel to a defendant
or made a faulty tax
assessment. Whatever doubt
may exist in those or in other
situations as to whether the
state officials could
reasonably anticipate and
recognize the relevant
constitutional rights is
immaterial in this case. Our
attention here is directed
[88]
solely to three state officials
who, in the course of their
official duties, have
unjustifiably beaten and
crushed the body of a human
being, thereby depriving him
of trial by jury and of life
itself. The only pertinent
inquiry is whether § 20, by its
reference to the Fourteenth
Amendment guarantee that no
state shall deprive any person
of life without due process of
law, gives fair warning to
state officials that they are
criminally liable for violating
this right to life.

Common sense gives an

affirmative answer to that
problem. The reference in §
20 to rights protected by the
Constitution is manifest and
simple. At the same time, the
right not to be deprived of
life without due process of
law is distinctly and lucidly
 protected by the Fourteenth
Amendment. There is nothing
vague or indefinite in these
references to this most basic
of all human rights.
Knowledge of a
comprehensive law library is
unnecessary for officers of
the law to know that the right
to murder individuals in the
course of their duties is
unrecognized in this nation.
[89] No appreciable amount of
intelligence or conjecture on
the part of the lowliest state
official is needed for him to
realize that fact; nor should it
surprise him to find out that
the Constitution protects
persons from his reckless
disregard of human life and
that statutes punish him
therefor. To subject a state
official to punishment under §
20 for such acts is not to
penalize him without fair and
definite warning. Rather it is
to uphold elementary
standards of decency and to
make American principles of
law and our constitutional
guarantees mean something
more than pious rhetoric.

Under these circumstances it

is unnecessary to send this
case back for a further trial on
the assumption that the jury
was not charged on the matter
of the willfulness of the state
officials, an issue that was not
raised below or before us.
The evidence is more than
convincing that the officials
willfully, or at least with
wanton disregard of the
consequences, deprived
Robert Hall of his life without
due process of law. A new
trial could hardly make that
fact more evident; the failure
[90]
to charge the jury on
willfulness was at most an
inconsequential error.
Moreover, the presence or
absence of willfulness fails to
decide the constitutional issue
raised before us. Section 20 is
 very definite and certain in its
reference to the right to life
as spelled out in the
Fourteenth Amendment quite
apart from the state of mind
of the state officials. A
finding of willfulness can add
nothing to the clarity of that
reference.

It is an illusion to say that the

real issue in this case is the
alleged failure of § 20 fully to
warn the state officials that
their actions were illegal. The
Constitution, § 20 and their
own consciences told them
that. They knew that they
lacked any mandate or
authority to take human life
unnecessarily or without due
process of law in the course
of their duties. They knew
that their excessive and
abusive use of authority
would only subvert the ends
of justice. The significant
question, rather, is whether
law enforcement officers and
those entrusted with authority
[91] shall be allowed to violate
with impunity the clear
constitutional rights of the
inarticulate and the friendless.
Too often unpopular
minorities, such as Negroes,
are unable to find effective
refuge from the cruelties of
bigoted and ruthless authority.
States are undoubtedly
capable of punishing their
officers who commit such
outrages. But where, as here,
the states are unwilling for
some reason to prosecute
such crimes the federal
government must step in
unless constitutional
guarantees are to become
atrophied.

This necessary intervention,

however, will be futile if
courts disregard reality and
misuse the principle that
criminal statutes must be
clear and definite. Here state
 officers have violated with
reckless abandon a plain
constitutional right of an
[92] American citizen. The two
courts below have found and
the record demonstrates that
the trial was fair and the
evidence of guilt clear. And §
20 unmistakably outlaws such
actions by state officers. We
should therefore affirm the
judgment.

MR. JUSTICE ROBERTS,

MR. JUSTICE
FRANKFURTER and MR.
[93]
JUSTICE JACKSON,
dissenting.

Three law enforcement

officers of Georgia, a county
sheriff, a special deputy and a
city policeman, arrested a
young Negro charged with a
local crime, that of stealing a
tire. While he was in their
custody and handcuffed, they
so severely beat the lad that
he died. This brutal
misconduct rendered these
lawless law officers guilty of
manslaughter, if not of
murder, under Georgia law.
Instead of leaving this
misdeed to vindication by
Georgia law, the United
States deflected Georgia's
responsibility by instituting a
federal prosecution. But this
was a criminal homicide only
under Georgia law. The
United States could not
prosecute the petitioners for
taking life. Instead a
prosecution was brought, and
the conviction now under
review was obtained, under §
20 of the Criminal Code, 18
U. S. C. § 52. Section 20,
originating in § 2 of the Civil
Rights Act of April 9, 1866,
[94] 14 Stat. 27, was put on the
statute books on May 31,
1870, but for all practical
purposes it has remained a
dead letter all these years.
This section provides that
 "Whoever, under color of any
law, statute, ordinance,
regulation, or custom,
willfully subjects . . . any
inhabitant of any State . . . to
the deprivation of any rights,
privileges, or immunities
secured or protected by the
Constitution and laws of the
United States . . . shall be
fined not more than one
thousand dollars, or
imprisoned not more than one
year, or both." Under § 37 of
the Criminal Code, 18 U. S.
C. § 88, a conspiracy to
commit any federal offense is
punishable by imprisonment
for two years. The theory of
this prosecution is that one
charged with crime is entitled
to due process of law and that
that includes the right to an
orderly trial of which the
petitioners deprived the
Negro.

Of course the petitioners are

punishable. The only issue is
whether Georgia alone has
the power and duty to punish,
or whether this patently local
crime can be made the basis
of a federal prosecution. The
practical question is whether
the States should be relieved
from responsibility to bring
their law officers to book for
[95] homicide, by allowing
prosecutions in the federal
courts for a relatively minor
offense carrying a short
sentence. The legal question
is whether, for the purpose of
accomplishing this relaxation
of State responsibility,
hitherto settled principles for
the protection of civil liberties
shall be bent and tortured.

I
[96]

By the Thirteenth
Amendment slavery was
abolished. In order to secure
equality of treatment for the
 emancipated, the Fourteenth
Amendment was adopted at
the same time. To be sure, the
latter Amendment has not
been confined to instances of
[97] discrimination because of
race or color. Undoubtedly,
however, the necessary
protection of the new
freedmen was the most
powerful impulse behind the
Fourteenth Amendment. The
vital part of that Amendment,
§ 1, reads as follows:

"All persons born or

naturalized in the United
States, and subject to the
jurisdiction thereof, are
citizens of the United States
and of the State wherein they
reside. No State shall make or
enforce any law which shall
abridge the privileges or
[98]
immunities of citizens of the
United States; nor shall any
State deprive any person of
life, liberty, or property,
without due process of law;
nor deny to any person within
its jurisdiction the equal
protection of the laws."

By itself, this Amendment is

merely an instrument for
striking down action by the
States in defiance of it. It
does not create rights and
obligations actively
enforceable by federal law.
However, like all rights
secured by the Constitution of
the United States, those
created by the Fourteenth
Amendment could be
enforced by appropriate
federal legislation. The
[99] general power of Congress to
pass measures effectuating
the Constitution is given by
Art. I, § 8, cl. 18 -- the
Necessary-and-Proper
Clause. In order to indicate
the importance of enforcing
the guarantees of Amendment
XIV, its fifth section
specifically provides: "The
 Congress shall have power to
enforce, by appropriate
legislation, the provisions of
this article."

Accordingly, Congress passed

various measures for its
enforcement. It is familiar
history that much of this
legislation was born of that
vengeful spirit which to no
small degree envenomed the
Reconstruction era.
Legislative respect for
constitutional limitations was
not at its height and Congress
passed laws clearly
unconstitutional. See Civil
Rights Cases, 109 U.S. 3. One
of the laws of this period was
the Act of May 31, 1870, 16
Stat. 140. In its present form,
as § 20, it is now here for the
first time on full
consideration as to its
meaning and its
constitutionality,
unembarrassed by
preoccupation both on the
part of counsel and Court
with the more compelling
issue of the power of
Congress to control State
[100]
procedure for the election of
federal officers. If § 20 were
read as other legislation is
read, by giving it the meaning
which its language in its
proper setting naturally and
spontaneously yields, it is
difficult to believe that there
would be real doubt about the
proper construction. The
unstrained significance of the
words chosen by Congress,
the disclosed purpose for
which they were chosen and
to which they were limited,
the always relevant
implications of our federal
system especially in the
distribution of power and
responsibility for the
enforcement of the criminal
law as between the States and
the National Government, all
converge to make plain what
conduct Congress outlawed
 by the Act of 1870 and what
impliedly it did not.

The Fourteenth Amendment

prohibited a State from so
acting as to deprive persons
of new federal rights defined
by it. Section 5 of the
Amendment specifically
authorized enabling
legislation to enforce that
prohibition. Since a State can
act only through its officers,
Congress provided for the
prosecution of any officer
who deprives others of their
guaranteed rights and denied
such an officer the right to
defend by claiming the
authority of the State for his
action. In short, Congress said
that no State can empower an
officer to commit acts which
the Constitution forbade the
State from authorizing,
whether such unauthorized
command be given for the
State by its legislative or
judicial voice, or by a custom
contradicting the written law.
[101]
See Nashville, C. & St. L. R.
Co. v. Browning, 310 U.S.
362, 369. The present
prosecution is not based on an
officer's claim that that for
which the United States seeks
his punishment was
commanded or authorized by
the law of his State. On the
contrary, the present
prosecution is based on the
theory that Congress made it
a federal offense for a State
officer to violate the explicit
law of his State. We are
asked to construe legislation
which was intended to
effectuate prohibitions against
States for defiance of the
Constitution, to be equally
applicable where a State duly
obeys the Constitution, but an
officer flouts State law and is
unquestionably subject to
punishment by the State for
his disobedience.
 So to read § 20 disregards not
merely the normal function of
language to express ideas
appropriately. It fails not
merely to leave to the States
the province of local crime
enforcement, that the proper
balance of political forces in
our federalism requires. It
does both, heedless of the
Congressional purpose,
clearly evinced even during
the feverish Reconstruction
days, to leave undisturbed the
power and the duty of the
[102] States to enforce their
criminal law by restricting
federal authority to the
punishment only of those
persons who violate federal
rights under claim of State
authority and not by exerting
federal authority against
offenders of State authority.
Such a distortion of federal
power devised against
recalcitrant State authority
never entered the minds of
the proponents of the
legislation.

Indeed, we have the

weightiest evidence to
indicate that they rejected that
which now, after seventy-five
years, the Government urges.
Section 20 of the Criminal
Code derived from § 2 of the
Civil Rights Act of 1866, 14
Stat. 27. During the debate on
that section, Senator
Trumbull, the Chairman of
the Senate Judiciary
Committee, answered fears
concerning the loose
inclusiveness of the phrase
"color of law." In particular,
opponents of the Act were
troubled lest it would make
criminals of State judges and
officials for carrying out their
legal duties. Senator
Trumbull agreed that they
would be guilty if they
consciously helped to enforce
discriminatory State
legislation. Federal law,
replied Senator Trumbull, was
 directed against those, and
only against those, who were
not punishable by State law
[103]
precisely because they acted
in obedience to
unconstitutional State law and
by State law justified their
action. Said Senator
Trumbull, "If an offense is
committed against a colored
person simply because he is
colored, in a State where the
law affords him the same
protection as if he were
white, this act neither has nor
was intended to have
anything to do with his case,
because he has adequate
remedies in the State courts;
but if he is discriminated
against under color of State
laws because he is colored,
then it becomes necessary to
interfere for his protection."
Cong. Globe, 39th Cong., 1st
Sess., p. 1758. And this
language applies equally to §
17 of the Act of May 31,
1870, 16 Stat. 140, 144 (now
§ 20 of the Criminal Code),
which reenacted the Civil
Rights Act.

That this legislation was

confined to attempted
deprivations of federal rights
by State law and was not
extended to breaches of State
law by its officials, is
likewise confirmed by
observations of Senator
Sherman, another leading
Reconstruction statesman.
When asked about the
applicability of the 1870 Act
to a Negro's right to vote
when State law provided for
that right, Senator Sherman
replied, "That is not the case
with which we are dealing. I
intend to propose an
amendment to present a
question of that kind. This
bill only proposes to deal
with offenses committed by
officers or persons under
color of existing State law,
under color of existing State
 constitutions. No man could
be convicted under this bill
reported by the Judiciary
Committee unless the denial
of the right to vote was done
[104]
under color or pretense of
State regulation. The whole
bill shows that. My honorable
friend from California has not
read this bill with his usual
care if he does not see that
that runs through the whole of
the provisions of the first and
second sections of the bill,
which simply punish officers
as well as persons for
discrimination under color of
State laws or constitutions;
and so it provides all the way
through." Cong. Globe, 41st
Cong., 2d Sess., p. 3663. The
debates in Congress are
barren of any indication that
the supporters of the
legislation now before us had
the remotest notion of
authorizing the National
Government to prosecute
State officers for conduct
which their State had made a
State offense where the
settled custom of the State did
not run counter to formulated
law.

Were it otherwise it would

indeed be surprising. It was
natural to give the shelter of
the Constitution to those basic
human rights for the
vindication of which the
successful conduct of the
Civil War was the end of a
long process. And the
extension of federal authority
so as to guard against evasion
by any State of these newly
created federal rights was an
obvious corollary. But to
attribute to Congress the
making overnight of a
revolutionary change in the
balance of the political
relations between the
National Government and the
States without reason, is a
very different thing. And to
have provided for the
 National Government to take
[105] over the administration of
criminal justice from the
States to the extent of making
every lawless act of the
policeman on the beat or in
the station house, whether by
way of third degree or the
illegal ransacking for
evidence in a man's house
(see Gouled v. United States,
255 U.S. 298; Byars v. United
States, 273 U.S. 28; Brown v.
Mississippi, 297 U.S. 278;
Chambers v. Florida, 309
U.S. 227), a federal offense,
would have constituted a
revolutionary break with the
past overnight. The desire for
such a dislocation in our
federal system plainly was
not contemplated by the
Lyman Trumbulls and the
John Shermans, and not even
by the Thaddeus Stevenses.

Regard for maintaining the

delicate balance "between the
judicial tribunals of the Union
and of the States" in the
enforcement of the criminal
law has informed this Court,
as it has influenced Congress,
"in recognition of the fact that
the public good requires that
those relations be not
disturbed by unnecessary
conflict between courts
equally bound to guard and
protect rights secured by the
[106] Constitution." Ex parte
Royall, 117 U.S. 241, 251.
Observance of this basic
principle under our system of
Government has led this
Court to abstain, even under
more tempting circumstances
than those now here, from
needless extension of federal
criminal authority into
matters that normally are of
State concern and for which
the States had best be charged
with responsibility.

We have reference to § 33 of
the Judicial Code, as
 amended, 28 U. S. C. § 76.
That provision gives the right
of removal to a federal court
of any criminal prosecution
begun in a State court against
a revenue officer of the
United States "on account of
any act done under color of
his office or of any such
[revenue] law." Where a State
prosecution for manslaughter
is resisted by the claim that
what was done was justifiably
done by a United States
officer one would suppose
that this Court would be alert
to construe very broadly
"under color of his office or
of any such law" in order to
avoid the hazards of trial,
whether through conscious or
unconscious discrimination or
hostility, of a United States
officer accused of homicide
and to assure him a trial in a
presumably more impartial
federal court. But this Court
long ago indicated that
misuse of federal authority
does not come within the
statute's protection. Tennessee
v. Davis, 100 U.S. 257, 261-
262. More recently, this Court
in a series of cases
unanimously insisted that a
petition for removal must
show with particularity that
the offense for which the
State is prosecuting resulted
from a discharge of federal
duty. "It must appear that the
[107]
prosecution of him, for
whatever offense, has arisen
out of the acts done by him
under color of federal
authority and in enforcement
of federal law, and he must
by direct averment exclude
the possibility that it was
based on acts or conduct of
his not justified by his federal
duty. . . . The defense he is to
make is that of his immunity
from punishment by the State,
because what he did was
justified by his duty under the
federal law, and because he
did nothing else on which the
prosecution could be based."
 Maryland v. Soper (No. 1),
270 U.S. 9, 33. And see
Maryland v. Soper (No. 2),
270 U.S. 36; Maryland v.
Soper (No. 3), 270 U.S. 44;
Colorado v. Symes, 286 U.S.
510. To the suggestion that
such a limited construction of
the removal statute enacted
for the protection of the
United States officers would
restrict its effectiveness, the
answer was that if Congress
chose to afford even greater
protection and to withdraw
from the States the right and
duty to enforce their criminal
law in their own courts, it
should express its desire more
specifically. Maryland v.
Soper (No. 2), 270 U.S. 36,
42, 44. That answer should be
binding in the situation now
before us.

The reasons which led this

Court to give such a restricted
scope to the removal statute
are even more compelling as
to § 20. The matter concerns
policies inherent in our
federal system and the
undesirable consequences of
federal prosecution for crimes
which are obviously and
predominantly State crimes
no matter how much
sophisticated argumentation
may give them the appearance
of federal crimes. Congress
has not expressed a contrary
[108]
purpose, either by the
language of its legislation or
by anything appearing in the
environment out of which its
language came. The practice
of government for seventy-
five years likewise speaks
against it. Nor is there a body
of judicial opinion which bids
us find in the unbridled
excess of a State officer,
constituting a crime under his
State law, action taken "under
color of law" which federal
law forbids.
 Only two reported cases
considered § 20 before United
States v. Classic, 313 U.S.
299. In United States v.
Buntin, F. 730, a teacher, in
reliance on a State statute,
refused admittance to a
colored child, while in United
States v. Stone, 188 F. 836,
election supervisors who
acted under a Maryland
election law were held to act
"under color of law." In
neither case was there a
patent violation of State law
but rather an attempt at
justification under State law.
United States v. Classic,
supra, is the only decision
that looks the other way. In
that case primary election
officials were held to have
[109] acted "under color of law"
even though the acts
complained of as a federal
offense were likewise
condemned by Louisiana law.
The truth of the matter is that
the focus of attention in the
Classic case was not our
present problem, but was the
relation of primaries to the
protection of the electoral
process under the United
States Constitution. The
views in the Classic case thus
reached ought not to stand in
the way of a decision on the
merits of a question which
has now for the first time
been fully explored and its
implications for the workings
of our federal system have
been adequately revealed.

It was assumed quite

needlessly in the Classic case
that the scope of § 20 was
coextensive with the
Fourteenth Amendment.
Because the weight of the
case was elsewhere, we did
not pursue the difference
between the power granted to
Congress by that Amendment
to bar "any State" from
depriving persons of the
newly created constitutional
 rights and the limited extent
to which Congress exercised
that power, in what is now §
20, by making it an offense
for one acting "under color of
any law" to deprive another
of such constitutional rights.
It may well be that Congress
could, within the bounds of
the Fourteenth Amendment,
treat action taken by a State
official even though in
defiance of State law and not
condoned by ultimate State
authority as the action of "a
State." It has never been
satisfactorily explained how a
State can be said to deprive a
person of liberty or property
[110] without due process of law
when the foundation of the
claim is that a minor official
has disobeyed the authentic
command of his State. See
Raymond v. Chicago Traction
Co., 207 U.S. 20, 40, 41.
Although action taken under
such circumstances has been
deemed to be deprivation by a
"State" of rights guaranteed
by the Fourteenth
Amendment for purposes of
federal jurisdiction, the
doctrine has had a fluctuating
and dubious history. Compare
Barney v. City of New York,
193 U.S. 430, with Raymond
v. Chicago Traction Co.,
supra; Memphis v.
Cumberland Telephone Co.,
218 U.S. 624, with Home Tel.
& Tel. Co. v. Los Angeles,
227 U.S. 278. Barney v. City
of New York, supra, which
ruled otherwise, although
questioned, has never been
overruled. See, for instance,
Iowa-Des Moines Bank v.
Bennett, 284 U.S. 239, 246-
247, and Snowden v. Hughes,
321 U.S. 1, 13.*fn1

But assuming unreservedly

that conduct such as that now
before us, perpetrated by State
officers in flagrant defiance
of State law, may be
attributed to the State under
 the Fourteenth Amendment,
this does not make it action
under "color of any law."
Section 20 is much narrower
than the power of Congress.
Even though Congress might
have swept within the federal
criminal law any action that
could be deemed within the
vast reach of the Fourteenth
Amendment, Congress did
not do so. The
presuppositions of our federal
system, the pronouncements
of the statesmen who shaped
this legislation, and the
normal meaning of language
powerfully counsel against
attributing to Congress
intrusion into the sphere of
criminal law traditionally and
naturally reserved for the
States alone. When due
account is taken of the
[111] considerations that have
heretofore controlled the
political and legal relations
between the States and the
National Government, there is
not the slightest warrant in
the reason of things for
torturing language plainly
designed for nullifying a
claim of acting under a State
law that conflicts with the
Constitution so as to apply to
situations where State law is
in conformity with the
Constitution and local
misconduct is in undisputed
violation of that State law. In
the absence of clear direction
by Congress we should leave
to the States the enforcement
of their criminal law, and not
relieve States of the
responsibility for vindicating
wrongdoing that is essentially
local or weaken the habits of
local law enforcement by
tempting reliance on federal
authority for an occasional
unpleasant task of local
enforcement.

II
[112]
 In our view then, the
Government's attempt to
bring an unjustifiable
homicide by local Georgia
peace officers within the
defined limits of the federal
[113] Criminal Code cannot clear
the first hurdle of the legal
requirement that that which
these officers are charged
with doing must be done
under color of Georgia law.

Since the majority of the

Court do not share this
conviction that the action of
the Georgia peace officers
was not perpetrated under
color of law, we, too, must
consider the constitutionality
of § 20. All but two members
of the Court apparently agree
that insofar as § 20 purports
to subject men to punishment
for crime it fails to define
what conduct is made
criminal. As misuse of the
criminal machinery is one of
the most potent and familiar
instruments of arbitrary
government, proper regard for
the rational requirement of
definiteness in criminal
statutes is basic to civil
[114] liberties. As such it is
included in the constitutional
guaranty of due process of
law. But four members of the
Court are of the opinion that
this plain constitutional
principle of definiteness in
criminal statutes may be
replaced by an elaborate
scheme of constitutional
exegesis whereby that which
Congress has not defined the
courts can define from time
to time, with varying and
conflicting definiteness in the
decisions, and that, in any
event, an undefined range of
conduct may become
sufficiently definite if only
such undefined conduct is
committed "willfully."

In subjecting to punishment
 "deprivation of any rights,
privileges, or immunities
secured or protected by the
Constitution and laws of the
United States," § 20 on its
face makes criminal
deprivation of the whole
range of undefined appeals to
[115]
the Constitution. Such is the
true scope of the forbidden
conduct. Its domain is
unbounded and therefore too
indefinite. Criminal statutes
must have more or less
specific contours. This has
none.

To suggest that the "right"

deprivation of which is made
criminal by § 20 "has been
made specific either by the
express terms of the
Constitution or by decisions
interpreting it" hardly adds
definiteness beyond that of
the statute's own terms. What
provision is to be deemed
"specific" "by the express
terms of the Constitution" and
what not "specific"? If the
First Amendment
safeguarding free speech be a
"specific" provision, what
about the Fourth? "All
unreasonable searches and
seizures are absolutely
forbidden by the Fourth
Amendment." Nathanson v.
United States, 290 U.S. 41,
46. Surely each is among the
"rights, privileges, or
[116] immunities secured or
protected by the
Constitution," deprivation of
which is a crime under § 20.
In any event, what are the
criteria by which to determine
what express provisions of
the Constitution are "specific"
and what provisions are not
"specific"? And if the terms
of § 20 in and of themselves
are lacking in sufficient
definiteness for a criminal
statute, restriction within the
framework of "decisions
interpreting" the Constitution
cannot show the necessary
 definiteness. The illustrations
given in the Court's opinion
underline the inescapable
vagueness due to the doubts
and fluctuating character of
decisions interpreting the
Constitution.

This intrinsic vagueness of

the terms of § 20 surely
cannot be removed by making
the statute applicable only
where the defendant has the
"requisite bad purpose." Does
that not amount to saying that
the black heart of the
defendant enables him to
know what are the
[117] constitutional rights
deprivation of which the
statute forbids, although we
as judges are not able to
define their classes or their
limits, or, at least, are not
prepared to state what they
are unless it be to say that §
20 protects whatever rights
the Constitution protects?

Under the construction

proposed for § 20, in order for
a jury to convict, it would be
necessary "to find that
petitioners had the purpose to
deprive the prisoner of a
constitutional right, e. g. the
right to be tried by a court
rather than by ordeal." There
is no question that Congress
could provide for a penalty
against deprivation by State
officials "acting under color
of any law" of "the right to
be tried by a court rather than
by ordeal." But we cannot
restrict the problem raised by
§ 20 to the validity of
penalizing a deprivation of
this specific constitutional
right. We are dealing with the
reach of the statute, for
Congress has not
particularized as the Court
now particularizes. Such
transforming interpolation is
not interpretation. And that is
recognized by the sentence
[118]
[118]
just quoted, namely, that the
jury in order to convict under
§ 20 must find that an
accused "had the purpose to
deprive" another "of a
constitutional right," giving
this specific constitutional
right as "e. g.," by way of
illustration. Hence a judge
would have to define to the
jury what the constitutional
rights are deprivation of
which is prohibited by § 20. If
that is a legal question as to
which the jury must take
instruction from the court, at
least the trial court must be
possessed of the means of
knowing with sufficient
definiteness the range of
"rights" that are
"constitutional." The court
can hardly be helped out in
determining that legal
question by leaving it to the
jury to decide whether the act
was "willfully" committed.

It is not conceivable that this

Court would find that a
statute cast in the following
[119] terms would satisfy the
constitutional requirement for
definiteness:

"Whoever WILLFULLY
commits any act which the
Supreme Court of the United
States shall find to be a
deprivation of any right,
[120] privilege, or immunity
secured or protected by the
Constitution shall be
imprisoned not more than,
etc."

If such a statute would fall for

uncertainty, wherein does §
[121] 20 as construed by the Court
differ and how can it survive?

It was settled early in our

history that prosecutions in
the federal courts could not
be founded on any undefined
 body of so-called common
law. United States v. Hudson,
7 Cranch 32; United States v.
Gooding, 12 Wheat. 460.
Federal prosecutions must be
founded on delineation by
[122] Congress of what is made
criminal. To base federal
prosecutions on the shifting
and indeterminate decisions
of courts is to sanction
prosecutions for crimes based
on definitions made by courts.
This is tantamount to creating
a new body of federal
criminal common law.

It cannot be too often

emphasized that as basic a
difference as any between our
notions of law and those of
legal systems not founded on
Anglo-American conceptions
of liberty is that crimes must
be defined by the legislature.
The legislature does not meet
this requirement by issuing a
blank check to courts for their
retrospective finding that
some act done in the past
comes within the
contingencies and conflicts
that inhere in ascertaining the
content of the Fourteenth
Amendment by "the gradual
process of judicial inclusion
and exclusion." Davidson v.
New Orleans, 96 U.S. 97,
104. Therefore, to subject to
criminal punishment conduct
[123] that the court may eventually
find to have been within the
scope or the limitations of a
legal doctrine underlying a
decision is to satisfy the vital
requirement for definiteness
through an appearance of
definiteness in the process of
constitutional adjudication
which every student of law
knows not to comport with
actuality. What the
Constitution requires is a
definiteness defined by the
legislature, not one
argumentatively spelled out
through the judicial process
which, precisely because it is
 a process, can not avoid
incompleteness. A
definiteness which requires so
much subtlety to expound is
hardly definite.

It is as novel as it is an
inadmissible principle that a
criminal statute of indefinite
scope can be rendered
definite by requiring that a
person "willfully" commit
what Congress has not
defined but which, if
Congress had defined, could
constitutionally be outlawed.
Of course Congress can
prohibit the deprivation of
enumerated constitutional
rights. But if Congress makes
it a crime to deprive another
of any right protected by the
Constitution -- and that is
what § 20 does -- this Court
[124]
cannot escape facing
decisions as to what
constitutional rights are
covered by § 20 by saying
that in any event, whatever
they are, they must be taken
away "willfully." It has not
been explained how all the
considerations of
unconstitutional vagueness
which are laid bare in the
early part of the Court's
opinion evaporate by
suggesting that what is
otherwise too vaguely defined
must be "willfully"
committed.

In the early law an undesired

event attributable to a
particular person was
punished regardless of the
state of mind of the actor. The
rational development of
criminal liability added a
mental requirement for
criminal culpability, except in
a limited class of cases not
here relevant. (See United
States v. Balint, 258 U.S.
250.) That requisite mental
ingredient is expressed in
various forms in criminal
 statutes, of which the word
"willfully" is one of the most
common. When a criminal
statute prohibits something
from being "willfully" done,
"willfully" never defines the
physical conduct or the result
the bringing of which to pass
is proscribed. "Willfully"
merely adds a certain state of
mind as a prerequisite to
criminal responsibility for the
otherwise proscribed act. If a
statute does not satisfy the
due-process requirement of
giving decent advance notice
[125]
of what it is which, if
happening, will be visited
with punishment, so that men
may presumably have an
opportunity to avoid the
happening (see International
Harvester Co. v. Kentucky,
234 U.S. 216; Collins v.
Kentucky, 234 U.S. 634;
United States v. Cohen
Grocery Co., 255 U.S. 81;
Cline v. Frink Dairy Co., 274
U.S. 445), then "willfully"
bringing to pass such an
undefined and too uncertain
event cannot make it
sufficiently definite and
ascertainable. "Willfully"
doing something that is
forbidden, when that
something is not sufficiently
defined according to the
general conceptions of
requisite certainty in our
criminal law, is not rendered
sufficiently definite by that
unknowable having been
done "willfully." It is true
also of a statute that it cannot
lift itself up by its bootstraps.

Certainly these considerations

of vagueness imply
unconstitutionality of the Act
at least until 1909. For it was
not until 1909 that the word
"willfully" was introduced.
But the legislative history of
that addition affords no
evidence whatever that
anybody thought that
"willfully" was added to save
 the statute from
unconstitutionality. The Joint
Committee of Congress on
the Revision of Laws (which
sponsored what became the
Criminal Code) gives no such
indication, for it did not
propose "willfully"; the
reports in neither House of
Congress shed any light on
the subject, for the bill in
neither House proposed that
"willfully" be added; no
speech by anyone in charge
[126] of the bill in either House
sheds any light on the subject;
the report of the Conference
Committee, from which
"willfully" for the first time
emerges, gives no explanation
whatever; and the only
reference we have is that to
which the Court's opinion
refers (43 Cong. Rec., p.
3599). And that is an
unilluminating remark by
Senator Daniel of Virginia,
who had no responsibility for
the measure and who made
the remark in the course of an
exchange with Senator
Heyburn of Idaho, who was
in charge of the measure and
who complained of an alleged
attitude on the part of
Southern members to
filibuster against the bill
because of the retention of
Reconstruction legislation.

All this bears not merely on

the significance of "willfully"
in a presumably otherwise
unconstitutionally vague
statute. It also bears on the
fact that, for the purpose of
[127]
constitutionality, we are
dealing not with an old
statute that goes back to the
Reconstruction days, but only
to 1909.

Nor can support be found in

the opinions of this Court for
the proposition that
[128] "willfully" can make definite
prohibitions otherwise
 indefinite.

In Omaechevarria v. Idaho,
246 U.S. 343, the Court
sustained an Idaho statute
prohibiting any person having
charge of sheep from
allowing them to graze "upon
any range usually occupied
by any cattle grower." The
statute was attacked under the
Due Process Clause in that it
[129] failed to provide for the
ascertainment of the
boundaries of a "range" or for
determining what length of
time is necessary to constitute
a prior occupation a "usual"
one within the meaning of the
Act. This attack upon the
Idaho statute was rejected and
for the following reasons:

"Men familiar with range

conditions and desirous of
observing the law will have
little difficulty in determining
what is prohibited by it.
Similar expressions are
common in the criminal
statutes of other [grazing]
[130]
States. This statute presents
no greater uncertainty or
difficulty, in application to
necessarily varying facts, than
has been repeatedly
sanctioned by this court." 246
U.S. at 348.

Certainly there is no
comparison between a statute
employing the concept of a
western range and a statute
[131] outlawing the whole range of
constitutional rights,
unascertained if not
unascertainable.

To be sure, the opinion of Mr.

Justice Brandeis also brought
to its support § 6314 of
Revised Codes of Idaho
which provided that "In every
crime or public offense there
must exist a union, or joint
 operation, of act and intent,
or criminal negligence." But
this is merely an Idaho
phrasing of the conventional
saw in text books and
decisions dealing with
criminal law that there must
be a mens rea for every
offense. In other words, a
guilty state of mind is usually
required before one can be
punished for an outlawed act.
But the definition of the
outlawed act is not derived
from the state of mind with
[132] which it must be committed.
All that Mr. Justice Brandeis
meant by "indefiniteness" in
the context of this statute was
the claim that the statute did
not give enough notice as to
the act which was outlawed.
But notice was given by the
common knowledge of what
a "range" was, and for good
measure he suggested that
under the Act a man would
have to know that he was
grazing sheep where he had
no business to graze them.
There is no analogy between
the face of this Idaho statute
and the face of our statute.
The essential difference is
that in the Idaho statute the
outlawed act was defined; in
§ 20 it is undefined.

In Hygrade Provision Co. v.

Sherman, 266 U.S. 497, New
York punished the
misrepresentation of meat as
"kosher" or as satisfying
"orthodox Hebrew religious
requirements." Here, too, the
objection of indefiniteness
was rejected by this Court.
The objection bordered on the
frivolous. In this case, too,
[133] the opinion of the Court, as is
the way of opinions, softened
the blow by saying that there
was no danger of anyone
being convicted for not
knowing what he was doing,
for it required him to have
consciousness that he was
offering meat as "kosher"
 meat when he knew very well
that it was not.

Thus in both these cases this

Court was saying that the
criminal statutes under
scrutiny, although very
specific, did not expose any
innocent person to the
hazards of unfair conviction,
because not merely did the
legislation outlaw specifically
defined conduct, but guilty
[134] knowledge of such defined
criminality was also required.
It thereby took the legislation
outside the scope of United
States v. Balint, 258 U.S. 250,
in which the Court sustained
the prosecution of one wholly
innocent of knowledge of the
act, commission of which the
statute explicitly forbade.

This case does not involve

denying adequate power to
Congress. There is no
difficulty in passing effective
legislation for the protection
of civil rights against
improper State action. What
we are concerned with here is
something basic in a
democratic society, namely,
[135]
the avoidance of the injustice
of prohibiting conduct in
terms so vague as to make the
understanding of what is
proscribed a guess-work too
difficult for confident
judgment even for the judges
of the highest Court in the
land.

III
[136]

By holding, in this case, that

State officials who violate
State law nevertheless act
"under color of" State law,
and by establishing as federal
crimes violations of the vast,
undisclosed range of the
Fourteenth Amendment, this
Court now creates new
 delicate and complicated
problems for the enforcement
[137]
of the criminal law. The
answers given to these
problems, in view of the
tremendous scope of potential
offenses against the
Fourteenth Amendment, are
bound to produce a confusion
detrimental to the
administration of criminal
justice.

The Government recognizes

that "this is the first case
brought before this Court in
which § 20 has been applied
to deprivations of rights
secured by the Fourteenth
Amendment." It is not denied
that the Government's
contention would make a
potential offender against this
act of any State official who
as a judge admitted a
confession of crime, or who
as judge of a State court of
last resort sustained
admission of a confession,
which we should later hold
constitutionally inadmissible,
or who as a public service
[138] commissioner issued a
regulatory order which we
should later hold denied due
process or who as a municipal
officer stopped any conduct
we later should hold to be
constitutionally protected.
The Due Process Clause of
the Fourteenth Amendment
has a content the scope of
which this Court determines
only as cases come here from
time to time and then not
without close division and
reversals of position. Such a
dubious construction of a
criminal statute should not be
made unless language
compels.

That such a pliable

instrument of prosecution is
to be feared appears to be
recognized by the
Government. It urges three
 safeguards against abuse of
the broad powers of
prosecution for which it
contends. (1) Congress, it
says, will supervise the
Department's policies and
curb excesses by withdrawal
of funds. It surely is casting
an impossible burden upon
Congress to expect it to
police the propriety of
prosecutions by the
Department of Justice. Nor
would such detailed oversight
by Congress make for the
effective administration of the
criminal law. (2) The
Government further urges
that, since prosecutions must
be brought in the district
where the crime was
committed, the judge and
jurors of that locality can be
depended upon to protect
[139]
against federal interference
with State law enforcement.
Such a suggestion would, for
practical purposes, transfer
the functions of this Court,
which adjudicates questions
concerning the proper
relationship between the
federal and State
governments, to jurors whose
function is to resolve factual
questions. Moreover, if
federal and State prosecutions
are subject to the same
influences, it is difficult to see
what need there is for taking
the prosecution out of the
hands of the State. After all,
Georgia citizens sitting as a
federal grand jury indicted
and other Georgia citizens
sitting as a federal trial jury
convicted Screws and his
associates; and it was a
Georgia judge who charged
more strongly against them
than this Court thinks he
should have.

Finally, the Department of

Justice gives us this assurance
[140]
of its moderation:
 "(3) The Department of
Justice has established a
policy of strict self-limitation
with regard to prosecutions
under the civil rights acts.
When violations of such
statutes are reported, the
Department requires that
efforts be made to encourage
state officials to take
appropriate action under state
law. To assure consistent
observance of this policy in
the enforcement of the civil
rights statutes, all United
States Attorneys have been
instructed to submit cases to
the Department for approval
before prosecutions or
investigations are instituted.
The number of prosecutions
which have been brought
under the civil rights statutes
is small. No statistics are
available with respect to the
number of prosecutions prior
to 1939, when a special Civil
Rights Section was
established in the Department
of Justice. Only two cases
during this period have been
reported: United States v.
Buntin, 10 Fed. 730 (C. C. S.
D. Ohio), and United States
v. Stone, 188 Fed. 836 (D.
Md.). Since 1939, the number
of complaints received
annually by the Civil Rights
Section has ranged from
8,000 to 14,000, but in no
year have prosecutions under
both Sections 20 and 19, its
companion statute, exceeded
76. In the fiscal year 1943, for
example, 31 full
investigations of alleged
violations of Section 20 were
conducted, and three cases
[141]
were brought to trial. In the
following fiscal year there
were 55 such investigations,
and prosecutions were
instituted in 12 cases.
"Complaints of violations are
often submitted to the
Department by local law
enforcement officials who for
one reason or another may
feel themselves powerless to
 take action under state law. It
is primarily in this area,
namely, where the official
position of the wrongdoers
has apparently rendered the
State unable or unwilling to
institute proceedings, that the
statute has come into
operation. Thus, in the case at
bar, the Solicitor General of
the Albany Circuit in the
State of Georgia, which
included Baker County,
testified (R. 42): 'There has
been no complaint filed with
me in connection with the
death of Bobby Hall against
Sheriff Screws, Jones, and
Kelley. As to whom I depend
for investigation of matters
that come into my Court, I am
an attorney, I am not a
detective and I depend on
evidence that is available after
I come to Court or get into
the case . . . The sheriffs and
other peace officers of the
community generally get the
evidence and I act as the
attorney for the state. I rely
on my sheriffs and policemen
and peace officers and private
citizens also who prosecute
each other to investigate the
charges that are lodged in
court.'"

But such a "policy of strict

self-limitation" is not
accompanied by assurance of
permanent tenure and
immortality of those who
make it the policy. Evil men
are rarely given power; they
take it over from better men
to whom it had been
[142]
entrusted. There can be no
doubt that this shapeless and
all-embracing statute can
serve as a dangerous
instrument of political
intimidation and coercion in
the hands of those so
inclined.

We are told local authorities

cannot be relied upon for
 courageous and prompt
action, that often they have
personal or political reasons
for refusing to prosecute. If it
be significantly true that
crimes against local law
cannot be locally prosecuted,
[143] it is an ominous sign indeed.
In any event, the cure is a
reinvigoration of State
responsibility. It is not an
undue incursion of remote
federal authority into local
duties with consequent
debilitation of local
responsibility.

The complicated and subtle

problems for law enforcement
raised by the Court's decision
emphasize the conclusion that
§ 20 was never designed for
the use to which it has now
been fashioned. The
Government admits that it is
appropriate to leave the
[144]
punishment of such crimes as
this to local authorities.
Regard for this wisdom in
federal-State relations was
not left by Congress to
executive discretion. It is, we
are convinced, embodied in
the statute itself.

Opinion Footnotes

*fn1 A demurrer to the

indictment alleging among
other things that the matters
charged did not constitute an
offense against the United
States and did not come
[145] within the purview of § 20
was overruled. At the end of
the government's case
 petitioners' motion for a
directed verdict on the
grounds of the insufficiency
of the evidence was denied.

*fn2 Moreover, federal as well

as state officials would run
afoul of the Act since it
speaks of "any law, statute,
ordinance, regulation, or
[146] custom." Comparable
uncertainties will exist in the
application of the due process
clause of the Fifth
Amendment.

*fn3 See Cong. Globe, 41st

Cong., 2d Sess., pp. 3807-
3808, 3881. Flack, The
[147] Adoption of the Fourteenth
Amendment (1908), pp. 19-
54, 219, 223, 227; Hague v.
C. I. O., 307 U.S. 496, 510.

*fn4See United States v.

[148] Classic, 313 U.S. 299, 327,
note 10.

*fn5 "That any person who,

under color of any law,
statute, ordinance, regulation,
or custom, shall subject, or
cause to be subjected, any
inhabitant of any State or
Territory to the deprivation of
any right secured or protected
by this act, or to different
punishment, pains, or
penalties on account of such
person having at any time
been held in a condition of
slavery or involuntary
[149] servitude, except as a
punishment for crime whereof
the party shall have been duly
convicted, or by reason of his
color or race, than is
prescribed for the punishment
of white persons, shall be
deemed guilty of a
misdemeanor, and, on
conviction, shall be punished
by fine not exceeding one
thousand dollars, or
 imprisonment not exceeding
one year, or both, in the
discretion of the court."

*fn6 "That any person who,

under color of any law,
statute, ordinance, regulation,
or custom, shall subject, or
cause to be subjected, any
inhabitant of any State or
Territory to the deprivation of
any right secured or protected
by the last preceding section
of this act, or to different
punishment, pains, or
penalties on account of such
person being an alien, or by
reason of his color or race,
than is prescribed for the
punishment of citizens, shall
be deemed guilty of a
misdemeanor, and, on
conviction, shall be punished
by fine not exceeding one
thousand dollars, or
imprisonment not exceeding
one year, or both, in the
discretion of the court."

The preceding section

referred to read as follows:
"That all persons within the
jurisdiction of the United
States shall have the same
[150]
right in every State and
Territory in the United States
to make and enforce
contracts, to sue, be parties,
give evidence, and to the full
and equal benefit of all laws
and proceedings for the
security of person and
property as is enjoyed by
white citizens, and shall be
subject to like punishment,
pains, penalties, taxes,
licenses, and exactions of
every kind, and none other,
any law, statute, ordinance,
regulation, or custom to the
contrary notwithstanding. No
tax or charge shall be
imposed or enforced by any
State upon any person
immigrating thereto from a
foreign country which is not
equally imposed and enforced
upon every person
 immigrating to such State
from any other foreign
country; and any law of any
State in conflict with this
provision is hereby declared
null and void."

*fn7 Its sponsor, Senator

Stewart, stated that "It
extends the operation of the
civil rights bill, which is well
[151] known in the Senate and to
the country, to all persons
within the jurisdiction of the
United States." Cong. Globe,
41st Cong., 2d Sess., p. 1536.

*fn8 That section provided in

part:

"That any person who, under

color of any law, statute,
ordinance, regulation, custom,
or usage of any State, shall
subject, or cause to be
subjected, any person within
the jurisdiction of the United
States to the deprivation of
any rights, privileges, or
immunities secured by the
[152] Constitution of the United
States, shall, any such law,
statute, ordinance, regulation,
custom, or usage of the State
to the contrary
notwithstanding, be liable to
the party injured in any action
at law, suit in equity, or other
proper proceeding for redress
. . ." This section became §
1979 of the Revised Statutes
and is now found in 8 U. S.
C. § 43. See Hague v. C. I.
O., supra, note 3, p. 510.
*fn9Sec. 5 thereof provides:
"The Congress shall have
[153] power to enforce, by
appropriate legislation, the
provisions of this Article."

*fn10 The petitioners may be

guilty of manslaughter or
murder under Georgia law
and at the same time liable
for the federal offense
proscribed by § 20. The
 instances where "an act
denounced as a crime by both
national and state
[154] sovereignties" may be
punished by each without
violation of the double
jeopardy provision of the
Fifth Amendment are
common. United States v.
Lanza, 260 U.S. 377, 382;
Hebert v. Louisiana, 272 U.S.
312.

*fn11
Cong. Globe, 39th
[155] Cong., 1st Sess., p. 1759.

*fn12
Cong. Globe, 41st
[156] Cong., 2d Sess., p. 3663.

Concurrence Footnotes

*fn1 The evidence was

conflicting whether the
warrant was made out and
issued before, or after, the
arrest and killing, and if
issued beforehand, whether it
was valid. The Court of
Appeals noted there was
evidence "that the alleged
warrant of arrest was prepared
[157] by the sheriff and was a
spurious afterthought" (140
F.2d at 665), but assumed in
the petitioner's favor that a
valid warrant had been issued.
The dissenting opinion said
the victim's shotgun was
taken from his home "not in a
search of his person but
apparently without lawful
warrant." 140 F.2d at 667.

*fn2 The crucial dispute of

 fact was over whether the
defendants had used more
force than was necessary to
restrain the prisoner. The
"overwhelming weight of the
testimony" (140 F.2d at 665)
[158] was that they used not only
all force required to subdue
him (if it is assumed he
resisted), but continued to
beat him for fifteen to thirty
minutes after he was knocked
to the ground.

*fn3 Cf. Part II infra.

[159]

*fn4 The dissenting judge in

the Court of Appeals thought
the local offense was not
"wilful murder, but rather that
[160] it was involuntary
manslaughter in the
commission of an unlawful
act." 140 F.2d at 666.

*fn5 It does not appear that the

state has taken any steps
[161] toward prosecution for
violation of its law.

*fn6Cf. notes 7 and 10. And

see Neal v. Delaware, 103
U.S. 370, 397; Civil Rights
Cases, 109 U.S. 3, 15-18;
Chicago, B. & Q. R. Co. v.
Chicago, 166 U.S. 226, 233-
234; Raymond v. Chicago
Traction Co., 207 U.S. 20,
35-37; Ex parte Young, 209
U.S. 123; Home Tel. & Tel.
Co. v. Los Angeles, 227 U.S.
278, 288-289; Cuyahoga
Power Co. v. Akron, 240 U.S.
462; Fidelity & Deposit Co.
v. Tafoya, 270 U.S. 426, 434;
[162] Hopkins v. Southern
California Telephone Co., 275
U.S. 393, 398; Iowa-Des
Moines Bank v. Bennett, 284
U.S. 239, 245-246; Nixon v.
Condon, 286 U.S. 73, 89;
Mosher v. City of Phoenix,
287 U.S. 29; Sterling v.
Constantin, 287 U.S. 378,
 393; Mooney v. Holohan, 294
U.S. 103; Missouri ex rel.
Gaines v. Canada, 305 U.S.
337, 343; Hague v. C. I. O.,
307 U.S. 496, 512; Cochran
v. Kansas, 316 U.S. 255; Pyle
v. Kansas, 317 U.S. 213.

*fn7 "The prohibitions of the

Fourteenth Amendment are
directed to the States, . . . It is
these which Congress is
empowered to enforce, and to
enforce against State action,
however put forth, whether
that action be executive,
legislative, or judicial. . . .
Whoever, by virtue of public
position under a State
government, deprives another
of property, life, or liberty,
without due process of law,
or denies or takes away the
equal protection of the laws,
violates the constitutional
inhibition; and as he acts in
[163] the name and for the State,
and is clothed with the State's
power, his act is that of the
State. This must be so, or the
constitutional prohibition has
no meaning." Ex parte
Virginia, 100 U.S. 339, 346-
347.

"Misuse of power, possessed

by virtue of state law and
made possible only because
the wrongdoer is clothed with
the authority of state law, is
action taken 'under color of'
state law." United States v.
Classic, 313 U.S. 299, 326,
citing Ex parte Virginia,
supra, and other authorities.

*fn8Cf. Part III infra. "Such

enforcement [of the
Fourteenth Amendment by
Congress] is no invasion of
State sovereignty. No law can
be, which the people of the
States have, by the
Constitution of the United
States, empowered Congress
[164] to enact. This extent of the
powers of the general
government is overlooked,
 when it is said, as it has been
in this case, that the act of
March 1, 1875, [18 Stat., part
3, 336] interferes with State
rights." Ex parte Virginia, 100
U.S. at 346.

*fn9 Cf. Home Tel. & Tel. Co.

[165] v. Los Angeles, 227 U.S. 278,
287.

*fn10 Compare Barney v. City

of New York, 193 U.S. 430,
with Home Tel. & Tel. Co. v.
Los Angeles, 227 U.S. 278,
the latter suggesting that the
former, "if it conflicted with
the doctrine" of Raymond v.
Chicago Traction Co., 207
U.S. 20, and Ex parte Young,
209 U.S. 123, "is now so
[166] distinguished or qualified as
not to be here authoritative or
even persuasive." 227 U.S. at
294. See also Snowden v.
Hughes, 321 U.S. 1, 13;
Isseks, Jurisdiction of the
Lower Federal Courts to
Enjoin Unauthorized Action
of State Officials, 40 Harv. L.
Rev. 969, 972.

*fn11 Petitioners' objections in

law were stated most
specifically in the demurrer to
the indictment. These grounds
also were incorporated in
their motion for a directed
verdict and their statement of
grounds for appeal. The
grounds for demurrer
[167] maintained that the facts
alleged were not sufficient to
constitute a federal offense,
to fall within or violate the
terms of any federal law or
statute, or to confer
jurisdiction upon the District
or other federal court. One
ground attacked the
indictment for vagueness.

*fn12
Section 19 of the
Criminal Code (18 U. S. C. §
 51):

"If two or more persons

conspire to injure, oppress,
threaten, or intimidate any
citizen in the free exercise or
enjoyment of any right or
privilege secured to him by
the Constitution or laws of
the United States, or because
of his having so exercised the
same, or if two or more
persons go in disguise on the
highway, or on the premises
of another, with intent to
prevent or hinder his free
exercise or enjoyment of any
right or privilege so secured,
they shall be fined not more
than $5,000 and imprisoned
not more than ten years, and
shall, moreover, be thereafter
ineligible to any office, or
place of honor, profit, or trust
[168]
created by the Constitution or
laws of the United States."
(Emphasis added.) Section 20
(18 U. S. C. § 52) is as
follows: "Whoever, under
color of any law, statute,
ordinance, regulation, or
custom, willfully subjects, or
causes to be subjected, any
inhabitant of any State,
Territory, or District to the
deprivation of any rights,
privileges, or immunities
secured or protected by the
Constitution and laws of the
United States, or to different
punishments, pains, or
penalties, on account of such
inhabitant being an alien, or
by reason of his color, or
race, than are prescribed for
the punishment of citizens,
shall be fined not more than
$1,000, or imprisoned not
more than one year, or both."
(Emphasis added.)

*fn13 Cf. note 32. President

Johnson, vetoing another bill
on July 16, 1866, stated that
the penalties of the Civil
[169] Rights Act "are denounced
against the person who
willfully violates the law."
Cong. Globe, 39th Cong., 1st
 Sess., 3839.

*fn14 For the history of these

changes, see the authorities
cited in the opinion of MR.
[170] JUSTICE DOUGLAS,
particularly Flack, Adoption
of the Fourteenth Amendment
(1908).

*fn15 United States v. Rhodes,

27 Fed. Cas. 785, No. 16,151;
United States v. Jackson, 26
Fed. Cas. 563, No. 15,459;
United States v. Buntin, 10 F.
730; cf. United States v.
Stone, 188 F. 836, a
prosecution under § 37 of the
Criminal Code for conspiracy
to violate § 20; cf., also 197
[171] F. 483; United States v.
Horton, 26 Fed. Cas. 375, No.
15,392. The constitutionality
of the statute was sustained in
the Rhodes case in 1866, and
in the Jackson case in 1874. It
was likewise sustained in In
re Turner, 24 Fed. Cas. 337,
No. 14,247 (1867); Smith v.
Moody, 26 Ind. 299 (1866).

*fn16 Cf. the authorities cited

[172] infra at note 25.

*fn17 Referring to § 20, the

Court said: "The generality of
the section, made applicable
as it is to deprivations of any
constitutional right, does not
obscure its meaning or impair
its force within the scope of
its application, which is
restricted by its terms to
deprivations which are
willfully inflicted by those
acting under color of any law,
statute and the like." 313 U.S.
at 328.

Concerning § 19, also

involved, the Court pointed to
the decisions in Ex parte
Yarbrough, 110 U.S. 651, and
United States v. Mosley, 238
U.S. 383, cf. note 22, and
 commented: ". . . the Court
found no uncertainty or
ambiguity in the statutory
language, obviously devised
to protect the citizen 'in the
free exercise or enjoyment of
any right or privilege secured
to him by the Constitution,'
and concerned itself with the
[173] question whether the right to
participate in choosing a
representative is so secured.
Such is our function here."
313 U.S. at 321. The opinion
stated further: "The
suggestion that § 19 . . . is not
sufficiently specific to be
deemed applicable to primary
elections, will hardly bear
examination. Section 19
speaks neither of elections
nor of primaries. In
unambiguous language it
protects 'any right or privilege
secured by the Constitution,' a
phrase which . . . extends to
the right of the voter to have
his vote counted . . . as well
as to numerous other
constitutional rights which
are wholly unrelated to the
choice of a representative in
Congress," citing United
States v. Waddell, 112 U.S.
76; Logan v. United States,
144 U.S. 263; In re Quarles,
158 U.S. 532; Motes v.
United States, 178 U.S. 458;
Guinn v. United States, 238
U.S. 347. Cf. note 18.

*fn18 The dissenting opinion

did not urge that §§ 19 and 20
are wholly void for
ambiguity, since it put to one
side cases involving
discrimination for race or
color as "plainly outlawed by
the Fourteenth Amendment,"
as to which it was said,
[174] "Since the constitutional
mandate is plain, there is no
reason why § 19 or § 20
should not be applicable."
However it was thought "no
such unambiguous mandate"
had been given by the
constitutional provisions
relevant in the Classic case.
 313 U.S. at 332.

*fn19 Cf. note 18.

[175]

*fn20 Whether or not the two

are coextensive in limitation
of federal and state power,
respectively, there is certainly
a very broad correlation in
coverage, and it hardly could
[176] be maintained that one is
confined by more clear-cut
boundaries than the other,
although differences in
meandering of the boundaries
may exist.

*fn21 The Court's opinion in

the Classic case treated this
clause of § 20, cf. note 12, as
entirely distinct from the
preceding clauses, stating that
"the qualification with respect
to alienage, color and race,
refers only to differences in
punishment and not to
deprivations of any rights or
privileges secured by the
Constitution," (emphasis
added) as was thought to be
evidenced by the grammatical
structure of the section and
"the necessities of the
practical application of its
provisions." 313 U.S. 326.

The "pains and penalties"

provision is clearly one
against discrimination. It does
not follow that the
[177] qualification as to alienage,
color and race does not also
refer to the "deprivation of
any rights or privileges"
clause, though not in an
exclusive sense. No authority
for the contrary dictum was
cited. History here would
seem to outweigh doubtful
grammar, since, as § 20
originally appeared in the
Civil Rights Act, the
qualification as to "color or
race" (alienage was added
later) seems clearly applicable
to its entire prohibition.
Although the section is not
exclusively a discrimination
statute, it would seem clearly,
in the light of its history, to
include discrimination for
alienage, color or race among
the prohibited modes of
depriving persons of rights or
privileges.
*fn22 Ex parte Yarbrough, 110
U.S. 651 (1884); United
States v. Waddell, 112 U.S.
76 (1884); Logan v. United
States, 144 U.S. 263 (1892);
In re Quarles and Butler, 158
U.S. 532 (1895); Motes v.
United States, 178 U.S. 458
(1900); United States v.
Mosley, 238 U.S. 383 (1915);
United States v. Morris, 125
F. 322 (1903); United States
v. Lackey, 99 F. 952 (1900),
reversed on other grounds,
107 F. 114, cert. denied, 181
U.S. 621.

In United States v. Mosley,

supra, as is noted in the text,
the Court summarily disposed
of the question of validity,
stating that the section's
constitutionality "is not open
to question." 238 U.S. at 386.
Cf. note 17. The Court was
concerned with implied
repeal, but stated: "But § 6
[the antecedent of § 19 in the
Enforcement Act] being
devoted, as we have said, to
the protection of all Federal
rights from conspiracies
against them . . . Just as the
Fourteenth Amendment . . .
was adopted with a view to
the protection of the colored
race but has been found to be
equally important in its
application to the rights of all,
§ 6 had a general scope and
used general words that have
become the most important. .
. The section now begins with
sweeping general words.
Those words always were in
the act, and the present form
gives them a congressional
interpretation. Even if that
interpretation would not have
 interpretation would not have
[178] been held correct in an
indictment under § 6, which
we are far from intimating,
and if we cannot interpret the
past by the present, we cannot
allow the past so far to affect
the present as to deprive
citizens of the United States
of the general protection
which on its face § 19 most
reasonably affords." 238 U.S.
at 387-388. (Emphasis
added.) The dissenting
opinion of Mr. Justice Lamar
raised no question of the
section's validity. It
maintained that Congress had
not included or had removed
protection of voting rights
from the section, leaving only
civil rights within its
coverage. 238 U.S. at 390.
The cases holding that the
Fourteenth Amendment and §
19 do not apply to infractions
of constitutional rights
involving no state action
recognize and often affirm the
section's applicability to
wrongful action by state
officials which infringes
them: United States v.
Cruikshank, 92 U.S. 542
(1876); Hodges v. United
States, 203 U.S. 1 (1906);
United States v. Powell, 212
U.S. 564 (1909), see also 151
F. 648; Ex parte Riggins, 134
F. 404 (1904), dismissed, 199
U.S. 547; United States v.
Sanges, 48 F. 78 (1891), writ
of error dismissed, 144 U.S.
310; Powe v. United States,
109 F.2d 147 (1940), cert.
denied, 309 U.S. 679. See
also United States v. Hall, 26
Fed. Cas. 79, No. 15,282
(1871); United States v. Mall,
26 Fed. Cas. 1147, No. 15,712
(1871).

*fn23Cf. the authorities cited

in notes 22 and 25; United
[179] States v. Saylor, 322 U.S.
385.

*fn24 Sections 19 and 37

clearly overlap in
 condemning conspiracies to
violate constitutional rights.
The latter, apparently, has
been more frequently used, at
any rate recently, when civil
rather than political rights are
[180] involved. It goes without
saying that in these cases
validity of the application of
§ 37, charging conspiracy to
violate § 20, depends upon
the latter's validity in
application to infraction of
the rights charged to have
been infringed.

*fn25 Recent examples

involving these and other
rights are: Culp v. United
States, 131 F.2d 93; Catlette
v. United States, 132 F.2d
902; United States v.
Sutherland, 37 F.Supp. 344;
United States v. Trierweiler,
52 F.Supp. 4.

In the Culp case the court

said: "That this section [§ 20]
has not lost any of its vitality
since it was originally
enacted, is indicated by . . .
United States v. Classic. . . It
is our opinion that a state law
enforcement officer who,
under color of state law,
willfully and without cause,
arrests and imprisons an
inhabitant of the United
States for the purpose of
extortion, deprives him of a
right, privilege, and immunity
secured and protected by the
Constitution of the United
[181] States, and commits one of
the offenses defined in § 52."
131 F.2d at 98. Fourteenth
Amendment rights were
involved also in the Catlette
case; and in United States v.
Trierweiler, supra, the court
said: "The congressional
purpose, obviously, is to
assure enjoyment of the rights
of citizens defined by the
Fourteenth Amendment,
including the mandate that no
state shall deprive any person
of life, liberty, or property
 without due process of law . .
." 52 F.Supp. at 5. United
States v. Buntin, 10 F. 730,
involved alleged
discrimination for race in
denying the right to attend
public school. In United
States v. Chaplin, 54 F.Supp.
926, the court ruled that a
state judge, acting in his
judicial capacity, is immune
to prosecution under § 37 for
violating § 20. But cf. Ex
parte Virginia, 100 U.S. 339.

*fn26 These have been the

perennial objections,
notwithstanding uniform
rejection in cases involving
[182] interference with both
political and civil rights. Cf.
the authorities cited in notes
7, 10, 22 and 25.

*fn27 Compare United States

v. Chaplin, 54 F.Supp. 926
[183] (see note 25 supra), with Ex
parte Virginia, 100 U.S. 339.

*fn28Cf. United States v.

[184] Buntin, 10 F. 730.

*fn29Cf. authorities cited in

[185] notes 7, 10, 22 and 25.

*fn30 Cf. Part III.

[186]

*fn31Compare the statutes

upheld in Chaplinsky v. New
Hampshire, 315 U.S. 568,
573-574; Gorin v. United
States, 312 U.S. 19, 23-28;
Minnesota v. Probate Court,
309 U.S. 270, 274; Old
Dearborn Co. v. Seagram
[187] Corp., 299 U.S. 183, 196;
Bandini Petroleum Co. v.
Superior Court, 284 U.S. 8,
18; Whitney v. California,
274 U.S. 357, 360, 368-369;
Fox v. Washington, 236 U.S.
273, 277-278; United States
v. Keitel, 211 U.S. 370, 393-
 395.

*fn32 I think all this would be

implied if "willfully" had not
been added to § 20 by
amendment. The addition but
reinforces the original
purpose. Cf. note 13 supra.
Congress, in this legislation,
hardly can be taken to have
sought to punish merely
negligent conduct or honest
[188] error of judgment by state
officials. The aim was at
grosser violations of basic
rights and the supreme law.
Sensible construction of the
language, with other
considerations, requires this
view. The consistent course
of the section's application
supports it.

*fn33See Flack, Adoption of

the Fourteenth Amendment
(1908) 22-38; Cong. Globe,
39th Cong., 1st Sess., 474-
607, 1151 ff.

Senator Davis of Kentucky

said that "this short bill
repeals all the penal laws of
[189]
the States. . . . The cases . . .
the . . . bill would bring up
every day in the United States
would be as numerous as the
passing minutes. The result
would be to utterly subvert
our Government . . ." Cong.
Globe, 39th Cong., 1st Sess.,
598.

*fn34 Cf. note 8.

[190]

Dissent Footnotes
 *fn1 Iowa-Des Moines Bank
v. Bennett, supra, illustrates
the situation where there can
be no doubt that the action
complained of was the action
of a State. That case came
here from a State court as the
ultimate voice of State law
authenticating the alleged
[191] illegal action as the law of the
State. Cases of which Lane v.
Wilson, 307 U.S. 268, is an
illustration are also to be
differentiated. In that case
election officials
discriminated illegally against
Negroes not in defiance of a
State statute but under its
authority.

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